Skip to main content

Full text of "Kindred and clan in the Middle Ages and after : a study in the sociology of the Teutonic races"

See other formats


Cambridge ^rrfoaeologiral airti Ofctfwologual Series; 




KINDRED AND CLAN 



The Cambridge Archaeological and Ethnological 
Series is supervised by an Editorial Committee consisting 
of M. R. JAMES, Litt.D., F.B.A., Provost of Kings 
College, P. GILES, Litt.D., Master of Emmanuel College, 
A. C. HADDON, Sc.D., F.R.S., University Reader in 
Ethnology, WILLIAM RIDGEWAY, Sc.D., F.B.A., Disney 
Professor of Archaeology, E.J. RAPSON, M.A., Professor 
of Sanskrit, and W. H. R. RIVEKS, M.A., F.R.S., 
University Lecturer in Physiology of the Senses. 



KINDRED AND CLAN 

IN THE MIDDLE AGES AND AFTER: 



A STUDY IN THE SOCIOLOGY OF 
THE TEUTONIC RACES 



BY 



BERTHA SURTEES PHILLPOTTS, M.A. 

Late Pfeiffer Student of Girton College, Cambridge ; Fellow of 
the Royal Society of Northern Antiquaries, Copenhagen 




Cambridge : 
at the University Press 



CAMBRIDGE UNIVERSITY PRESS 

EonUon: FETTER LANE, E.G. 

C. F. CLAY, MANAGER 




tombur[f) : 100, PRINCES STREET 

rHn: A. ASHER AND CO. 

ltip>ffl: F. A. BROCKHAUS 

tto Sorfc : G. P. PUTNAM'S SONS 

anH Calcutta: MACMILLAN AND CO., LTD. 



All rights reserved 



To 
M. A. C. and M. C. 

in whose house this book was planned and written. 



PREFACE 

r I ^HE aim of this book is to discover how long the solidarity 
of the kindred survived as a social factor of importance 
in the various Teutonic countries. The lack of accessible 
information on the subject was brought home to me by the 
difficulty I experienced in qualifying my own ignorance with 
regard to it, an ignorance of which I only became aware 
through reading Dr Brunner's Sippe und Wergeld nach alt- 
niederdeutschen Rechten. I had just worked out the results 
embodied in the first chapter of this book, and the startling 
contrast between their negative character and the ample evidence 
set forth by Dr Brunner evoked a desire to know why the 
kindreds should have endured so long in North Germany, where 
they were assailed by so many adverse influences, while I had 
found but the faintest traces of their survival in Iceland. The 
present work is nothing more than an attempt at answering 
my own questions. In the course of a general survey of the 
field it became obvious that neglect of the evidence furnished 
by judicial records and charters had led scholars to attribute 
too long a lease of life to the system in some countries, and 
to under-estimate its duration in others ; and that the causes 
usually adduced for its break-up only serve to complicate the 
problem still further. Finally there arose the suspicion that even 
in the later Middle Ages the institution played a part, obscure 
but not negligible, in the making of history. Thus I was lured 
on by successive problems, until the book was written, and I had 
never so much as asked myself whether my stock of legal and 
linguistic knowledge was equal to the demands made upon it. 



viii PREFACE 

Where I have been guilty of errors I can only ask for the 
indulgence of my critics. 

Since the field was far too wide in any case, I have 
circumscribed it as much as possible by restricting myself to 
districts continuously occupied by the Teutonic races since 
the Age of National Migrations or the Viking Age. Further, 
I have been reluctantly obliged to forego any serious investi- 
gation of central and south German conditions. Such meagre 
scraps of evidence as presumably exist for those regions could 
only be gleaned by an exhaustive search through all the 
published collections of mediaeval charters and chronicles. The 
search would be attractive, however slightly rewarded, but it 
must be the task of some student who has longer daily access 
to books than has fallen to the lot of the present writer. 

In view of the fluctuations of boundaries in the later Middle 
Ages it has seemed best to discuss the various districts in terms 
of modern political divisions, though it must be admitted that 
such a method has its drawbacks. 

With regard to terminology, I must apologize to the anthro- 
pologists for using the term 'clan' in its Scottish connotation, 
for large groups of kindred organized on an agnatic basis, 
regardless of the fact that they were probably not exogamous. 
' Agnatic ' and ' cognatic ' I employ in the usual dictionary 
sense : ' agnatic ' to denote kinship reckoned exclusively through 
males, 'cognatic' for all other blood-relationships, whether on 
the paternal or maternal side. In the concluding chapter I 
felt the need of a term signifying kinship reckoned exclusively 
through females, and I have there used the word ' matrilinear.' 
It would consequently have been more consistent to have 
substituted ' patrilinear ' for ' agnatic ' throughout the book, 
had that been feasible. As regards legal terminology, I am 
aware of the dangers of translating foreign mediaeval techni- 
calities into modern English, and have perhaps gone to the 
other extreme in using only the most general terms. 



PREFACE IX 



The difficulty which such combinations of sounds as ldr t 
present to the non-Icelandic reader may, it is hoped, justify a 
certain inconsistency in my treatment of Old Norse proper 
names. Where a nominative final r is preceded by any other 
consonant the accusative form is used, in all other cases the 
nominative. Thus I write Th6r5, Harald, Saemund, but Njall, 
Thorgeirr, Snorri. The Old Norse Jj is of course rendered by 
tk, but S (with the sound of th in 'the') has been allowed to 
stand. 

It is a pleasure to record some of the obligations I have 
incurred during a two-months' visit to Copenhagen and a 
month spent in German libraries and archives. Especially 
I would mention my debt of gratitude to Professor J. H. C. 
Steenstrup, of Copenhagen, for much kindness and advice. My 
thanks are also due to the staff of the Rigsarkiv, to Dr Louis 
Bobe of Copenhagen University, to Professor Poul J0rgensen 
for kindly allowing me to read an unpublished essay on Danish 
criminal law, and to my friend Mr Sigfus Blondal of the Royal 
Library in Copenhagen. I owe much of the measure of success 
which attended my researches in Schleswig to the kindness of 
the Director of the Staatsarchiv, Geheimrath Dr de Boor, who 
has since added to my obligations by collating one of my 
transcripts with the original MS. For help in obtaining admission, 
at a day's notice, to the town archives of Hamburg, as well as 
for many useful hints, I have to thank Professor Borchling and 
Dr Reincke; and I have a most grateful memory of the kindness 
of Geheimrath Dr Wachter, Director of the Staatsarchiv at 
Aurich. 

I find it difficult to express my sense of indebtedness to 
Professor Chadwick, who has most kindly read the greater part 
of the book either in proof or in manuscript ; but other old pupils 
of his will know from their own experience in like case how much 
I owe to his criticisms and suggestions, and how lavish he has 
been of his own time and trouble. I should add that for the 



X PREFACE 

theories contained in the book, the author is alone responsible, 
as also for the errors. 

For the calculations respecting wergilds I am greatly in- 
debted to my friend Miss Cave-Browne-Cave of Girton, who is 
however not to be held accountable for any inaccuracies that may 
have crept into them. I must also thank Miss Kirchberger, of 
Girton, and Dr Braunholtz, for help in construing Old French 
legal phrases. Nor must I forget my obligation to Professor 
VinogradofT, for criticism of certain chapters of the book at an 
early stage. My thanks are also due to the Syndics of the 
University Press for undertaking the publication of the book, 
and to their staff for their great care and skill. 

Finally, I must make grateful acknowledgment to the 
Managers of the Frederick William Maitland Memorial Fund, 
for their grant of .40 towards the publication of this work. 



B. S. P. 



CAMBRIDGE 

September 1913 



CONTENTS 

PACK 

INTRODUCTION i 

CHAP. 

I. ICELAND n 

II. NORWAY 47 

III. SWEDEN 68 

IV. DENMARK. 

VT NORTH GERMANY AND HOLLAND 

VI. BELGIUM AND NORTHERN FRANCE 173 

VII. ENGLAND 205 

VIII. CONCLUSION 245 

I. Summary of previous chapters 245 

II. The influence of the kindreds on social conditions. 246 

III. Causes of the decline of the kindreds . . . 257 

IV. The pre-historic group 265 

APPENDIX I. The 'hundred of silver' in Iceland . . 277 

II. Documents : 

1. Norway, 1348. Deed of reconciliation in a 

slaying-case 284 

2. Norway, 1585. Plea to the king concerning 

wergild 285 

3. Denmark, 1513. Deed of reconciliation . 286 

4. Denmark, 1542. Wergifd of Niels Mogens- 

sen 287 

5. Denmark, 1602. Deed of reconciliation . 288 

6. Schleswig, 1693. Court record of wergild- 

distribution 289 

7. Schleswig-Holstein, 1588. Deed of recon- 

ciliation 291 

8. Friesland, 1443. Notification of sums offered 

for the slaying of a slayer . . . 293 

9. Holland, 1392. Official adjudication in a 

slaying-case 294 

INDEX 297 



ADDENDA ET CORRIGENDA 

p. 1, 1. 9 from bottom. For country read century. 

p. 24, 11. 6-7. These words have been accidentally overlooked in revision. 
Since the publication of Heusler's Strafrecht der Isldndersagas (1911) 
they are no longer true. 

p. 48, 1. 5 from bottom. For BdrSr read Br8. 

pp. 50-52. It is worthy of notice that the Frostuthing wergild does not 
include the ordinary class of sakmikar father-in-law, brother-in-law 
and son-in-law. 

p. 69, 1. 12. For Teutonic read Scandinavian. 

p. 101, 1. i. For Knud the Great ra&/Knud VI. 

p. 165, 1. i. For Exactly read More than. 

p. 172, 1. 4. For slayer read slain. 

p. 1 8 1, 1. ii and 1. 2 from bottom. For Henricourt read Hemricourt. 

p. 237, 1. 2. For Aeschere read Hondscioh, and for Grendel's mother read 
Grendel. 

p. 249, 1. 2. In Wursten the kindred-system was still strong up to 1525 : 
see v. d. Osten, Gesch. des Landes Wursten, Th. I. pp. 46, 66 ff. 

p. 251, 1. 3. For kingdom read settlement. 

p. 273, 1. 2 from bottom. For the Netherlands read Holland. 



INTRODUCTION 

DURING the past few years an immense amount of valuable 
work has been done towards the elucidation of the ancient 
Teutonic tribal system. Picker, Brunner, von Amira, Vinogradoff 
and many others have thrown light on its manifestations in 
Germany and Scandinavia, and in his Tribal Custom in Anglo- 
Saxon Law Seebohm has shown how shreds of tribal custom 
surviving in Old English law can be pieced together to give 
some idea of a time when tribal custom was the only law. 

The object of all these scholars has been to disengage the 
original features of the tribal organization from the later and 
accidental accretions. Hence they have usually sought enlighten- 
ment in the earliest sources, and even then have had their eyes 
turned on the still remoter past. The result of this pre-occupa- 
tion has been to give us a remarkably vivid picture of .pre-historic 
society, of the organization of inter-related groups for agricultural 
as well as for offensive and defensive purposes. But it must be 
confessed that we are left with a curious vagueness in our 
knowledge when we turn to historical times and places. It is 
easy to acquaint ourselves, through many modern works, with 
details of the life and work of a typical freeman or villein in any 
mediaeval state : the dues he pays, the crops he grows, and so 
forth. But if we ask whether this typical freeman of such and 
such a country, of such and such a state, was still a member of 
a cohesive kindred, and if so, what it did for him, we too often 
ask in vain, for on this point our authorities are apt to be silent, 
or even to contradict one another. Yet, in forbearing to ask, 
are we not acting much as one who should read, a thousand 
years hence, of the minutiae of factory life and factory inspection 
in the iQth century, and should take no heed of the presence or 
absence of trade-unions? But for the fact that kinship-solidarity 
had no future before it, the comparison is not entirely fanciful, 
p. i 



2 INTRODUCTION 

How long did the solidarity of the kindred, the distin- 
guishing feature of the tribal system, survive in the mediaeval 
States : and where did it survive longest and thrive best? These 
questions are not so important as the vast earlier problems, but 
they need an answer. Moreover there is something to be said 
for the plan of "reading our history backwards as well as forwards, 
of making sure of our middle ages before we talk about the 
' archaic,' of accustoming our eyes to the twilight before we go 
out into the night 1 " ; and it may be that our attempts, however 
partial and imperfect, at answering these questions will be found 
to throw light at any rate on one other question : ' What 
was the cause of the break-up of the kindreds?' This question, 
however, like the previous ones, is seldom asked. Conquest, 
Roman law, Christianity are usually considered to combine into 
so powerful a solvent that the attitude of historians is rather one 
of wonder that tribal custom should have survived them at all. 

Before we proceed further it is necessary to define our terms. 
' Clan ' may fitly be used to describe large groups of kindred 
organized on an agnatic basis, such as we find in Dithmarschen. 
A clan system, however, is impossible where kinship is reckoned 
through both parents 2 , as among the overwhelming majority of 
the Teutonic races in historical times. Here, to use Maitland's 
words 3 , each individual 4 is himself the trunk of an arbor con- 
sanguinitatis, and it is this fluctuating group which we would 
designate by the word ' kindred.' It is a wechselnde Sippe rather 
than a gens, for it can have no name, no permanent organization, 
and no chief. 

We must next consider what we shall regard as satisfactory 
evidence for the solidarity of the kindred. And here we shall 
do well to make quite sure what we mean. When we speak of 
the solidarity of kindreds in early or mediaeval times, we mean 

1 Maitland, Domesday Book and Beyond, p. 356. 

2 It is true that Welsh and Irish laws give some share of wergildlo the relatives of 
the mother, but the whole organization of their groups of kinsmen in war is pre-eminently 
agnatic, as are also the laws of inheritance. The fact that kinship through the mother 
was recognized in ancient Rome in no way alters the fact that the gens is an agnatic 
organization. 

8 Pollock and Maitland, Hist, of Eng. Law, n. p. 238. 
4 Or rather each group of brothers and sisters. 



INTRODUCTION 3 

something definitely more than the solidarity frequently ex- 
hibited among kinsmen of to-day. It is obvious that kinship- 
solidarity is often a considerable motive force in modern social 
conditions. It is not unknown, for instance, that a man in a 
position of influence should use that influence to press the claims of 
a nephew, or a cousin, or even, less ardently perhaps, of a second 
cousin ; nor is it out of the range of our modern experience that 
the family of some delinquent should make great and not always 
entirely unsuccessful efforts to hush up the criminal action of a 
relative, even to the extent of straining every nerve to produce 
the sum for which a ne'er-do-well kinsman has forged a cheque. 
And it is still customary for relatives to act as guardians and 
trustees for minors, and to interest themselves in marriage settle- 
ments and so forth. This degree of solidarity exists to-day in all 
Teutonic countries, though perhaps least in our own. But when 
we speak of the ' kindreds ' of earlier times, we imply, by the 
mere use of that comprehensive term, something more than this. 
We imply that not only do individual kinsmen act on occasion 
so as to further a kinsman's prospects or shield him from a 
penalty, but that this kinsman becomes the centre of a united 
group of kindred, who act on his behalf, partly perhaps because 
they have his prospects at heart, but mainly because public 
opinion, the law, and their own views of life, make them guilty 
with him, and almost equally liable to penalty ; or, in the event 
of his death by violence, throw the responsibility for vengeance 
or satisfaction upon the whole group, not only on a few near 
kinsmen. Apparently the Teutonic kindred is not a corporation 
in the technical sense of that term 1 , for it is not permanently 
organized, and each time that it organizes itself its centre, and 
therefore its circumference, varies ; but nevertheless it is this 
corporate aspect of the kindred which really differentiates the 
kinship-solidarity of the past from that of to-day. Thus if we 
are to treat of kindreds, we must bear in mind that we mean 
something more than present-day society exhibits, and we must 
therefore resolutely dismiss, as affording no evidence, all manifes- 
tations of solidarity among kinsfolk which do not show this 
corporate character to a greater or less extent. It has been 

1 For the contrary view see Gierke, Genossenschaftsrecht, I. pp. 1 7 ff. 

I 2 



4 INTRODUCTION 

necessary to insist on this point, because it is so often overlooked, 
with the result that what we should to-day call normal manifes- 
tations of kinship-solidarity are used as evidence for the existence 
of a real kihdred system. To make our case quite clear we will 
take an instance. The Anglo-Saxon, in his oath of fealty to the 
king, has to declare that he will not conceal breaches of the oath 
by his brother or near kinsman any more than those committed 
by a stranger 1 . Now to this day it is much less likely that a 
man will publish a serious lapse on the part of his brother or 
relative than if the delinquent were a stranger ; and therefore we 
consider this passage (which moreover entirely lacks any sign of 
the corporate idea of the kindred) as revealing no more sign of 
the solidarity of the kindred than exists to-day. Yet the greatest 
living authority on Anglo-Saxon law thinks it worth while to 
quote this passage in his summary on the kindred 2 , and to ob- 
serve : "Das Sippenband droht die Staatspflicht zu ersticken 3 ." 

I. Guardianship by Kinsmen. For the reason just stated 
we shall be chary of attributing much value, as evidence for our 
purposes, to provisions in the laws vaguely assigning the charge 
of minors and so forth to the care of kinsmen. Here we cannot 
do better than quote Maitland on the clauses in the Anglo- 
Saxon laws concerning guardianship by kinsmen. These texts, 
he says, " do not authorize us to call up the vision of a m<zg* 
[kindred] acting as guardian by means of some council of elders ; 
the persons who would inherit if the child died may well be the 
custodians of the ancestral property. When Bracton, f. 87 b, 
says that an infant sokeman is sub custodia consanguineorum 
suorum propinquorum, we do not see a family council ; why 
should we then see one when a similar phrase occurs in an 
Anglo-Saxon doom 5 ?" It is only when we find the distant 
kinsmen's participation actually vouched for, as in Holland', 

1 in. Eadmund, i. 

Liebermann, Gesetze der Angelsachsen, II. 2, s.v. Sippe, 6 a. 
Ib. s.v. KiJnigstreue, ^ b. 

As a matter of fact the passages to which he refers (Hloth. and Ead. 6, Ine 38) 
do ot use the word ' kindred.' 

Pollock and Maitland, Hist, of Eng. Law, II. p. 142. 
See below, ch. v. 



INTRODUCTION 5 

that we can consent to see any evidence for the solidarity of the 
kin in such cases. 

II. Use of tlie word ' kindred! This leads us to a further 
point. The mere use, in the sources, of a word whose original 
meaning is ' kindred ' must not be taken as evidence in 
itself for the existence of large groups of kinsfolk. Legal 
documents are conservative, and if custom prescribes the use of 
the word ' kindred ' in a reconciliation-formula or elsewhere, it 
will continue to be used even though the kinsmen concerned 
include only the immediate family. An amusing instance of 
this occurs in the account of a Danish slaying-suit of 1630, in 
which reference is made to a deed of reconciliation between the 
slayer and the dead man's ' kindred 1 .' We conjure up a vision 
of a large group of relatives, but the document goes on to say, 
without any sense of incongruity " namely, Peder Trulsen of 
Sandby 2 ." Many more instances of the same type could be 
adduced, but this example should be sufficient to warn us 
against building on the occurrence of a word meaning ' kindred,' 
unless some indication is given of the extent of that kindred. 
This caution seems all the more necessary when we reflect that 
in most Teutonic languages the word for ' kindred ' has also to 
do duty for ' family ' until a very late date, so that it is unsafe to 
assume that it invariably refers to the larger group. 

III. Consent of kin in marriage. For the same reason we 
dismiss clauses providing vaguely for the consent of kin in 
marriage negotiations : we do not know, without further evidence, 
that this means very much more than the approval of the im- 
mediate family. 

IV. Tenure of land. All restrictions of ancestral land to 
persons belonging to the kin are of interest as survivals of tribal 
ideas, but their actual tribal significance is negligible, little 
greater than that of the English entail, for the only evidence 
such laws usually afford is of the importance of descent. 



1 "dend d^dis slegt." 

a Herredags Dombog (Rigsarkiv in Copenhagen), Anno 1630, No. 33, 19 June, 
ff. 163-6. 



6 INTRODUCTION 

If we now pass on to more convincing manifestations of 
kindred-cohesion, we shall see that these possess the distinguish- 
ing characteristic that the kindred appears as a group, not as a 
haphazard collection of individuals. 

V. Wergilds. There can be no doubt that wergilds are an 
admirable criterion for judging of the solidarity of the kindred. 
It is clear that if every relative of a slayer, up to his second or 
third cousins, actually pays a sum in proportion to the degree 
of his relationship with the culprit, the solidarity of the kin 
cannot be called in question. And this is, as we shall see, very 
frequently the case. But when we find that the slayer alone is 
liable, or primarily liable, for the wergild, and payment is made 
vaguely to the ' kinsmen of the slain/ we shall do well to doubt 
whether such evidence indicates any real degree of kinship- 
solidarity. The phrase ' kinsmen of the slain ' tends to suggest 
the idea of kindreds, but of course it is obvious that it must be 
used, however small the number of recipients may be, since the 
slain man cannot himself receive wergild a point which is 
sometimes overlooked. 

VI. Blood-vengeance, Organized blood-feuds, in which 
definite groups of kindred take part, show of course consider- 
able cohesion of the kindred. But it is necessary to make a 
distinction between these and mere acts of blood-vengeance. 
Though the blood-feud between kindreds, unappeasable by any 
compensation, actually dates from an earlier stage of tribal 
society than wergild, mere acts of blood-vengeance by an 
individual may sometimes be even a sign of the breaking-up of 
the kindred, showing that though this primary duty is still 
acknowledged, the injured kinsmen have not sufficient solidarity 
to act together in a body and secure their just rights. The 
exercise of blood-vengeance by a near relative, though obviously 
a survival of tribal ideas, affords no proof that the kindred has 
not been narrowed down to something more like the modern 
family. 

VII. Oath-helpers of the kindred. The system of oath- 
helpers of the kindred is well fitted to afford a criterion of kin- 



INTRODUCTION 7 

solidarity. This seems originally to have been entirely an affair 
within the kindred. The most common form of the institution 
is the oath of compurgation : the defendant in a case is required 
to clear himself of the accusation against him by an oath, and a 
certain number of his kindred have to swear with him, in order, 
apparently, that they shall be involved in the consequences of 
perjury if the accused is lying. At least the custom is thought 
to have originated in some such characteristically tribal idea. 
Where we find a considerable number of kindred required to 
take this oath, we may fairly assume some degree of solidarity 
among them. 

VIII. Maintenance of paupers. Laws regulating the respon- 
sibility of kinsmen towards their pauper relatives can be divided 
into two classes: (i) where the liability extends to the whole 
kindred, the degree of relationship determining the contribution 
of each kinsman, and (2) where the maintenance of the pauper 
falls upon the nearest relative who has the means to support 
him. The former case exhibits strong tribal solidarity : the 
latter, where the liability is not corporate, differs after all only in 
degree from the moral responsibility attaching to relatives in the 
modern code of ethics. 

IX. a. Repudiation by the kindred. It is perhaps paradoxical 
that a satisfactory proof of the solidarity of the kindred should 
be afforded by the formal repudiation, by the whole kindred, of 
an offending member. Yet it is clear that there would be no 
object in such a public repudiation unless membership of the 
kindred was a definite and acknowledged fact, involving the 
kindred in responsibilities. 

b. Renunciation of the kindred. Conversely, it may be termed 
good evidence for cohesive kindreds if we find measures taken to 
allow an individual to renounce his membership of a kindred, if 
he should find that his responsibilities towards it are too heavy 
for him to bear. 

Having decided what to look for, we must now make up our 
minds where to look. And here we must definitely part com- 
pany with the seekers after origins. The ancient customary 



8 INTRODUCTION 

laws English, Continental, Scandinavian, have long been re- 
cognized as the best place to seek for the remains of the tribal 
system, for it often happens that the laws of a country may 
preserve for centuries some caput mortuum, some archaic frag- 
ment of a tribal way of life, much as the chalk preserves the 
fossil, a scrap of wreckage from an earlier world, often meaning- 
less save to those who hold the clue. But for this very reason, 
that the existence of a law can never be taken as safe evidence 
for the actual continuance of a custom, we shall do well to 
depend on other evidence as far as possible. Even in modern 
times laws remain on the statute-book which practice has 
abrogated centuries ago 1 , and in ancient times law is almost as 
conservative as religious ritual 2 , a fact which must always be 
borne in mind by those who wish to ascertain the actual con- 
ditions of a given period. 

Laws are misleading in various ways. The local customary 
laws mislead by clinging to antiquated formulae, and quite often 
by omitting to incorporate a royal edict bearing on one of their 
clauses, even when it is actually in force in the district. Royal 
edicts, again, are misleading in the other direction, often em- 
phatically annulling an old law which nevertheless continues to 
be practically valid, sometimes for centuries after its official 
repeal. Sometimes we can arrive at an approximate idea of the 
actual conditions by comparing a series of royal edicts or noting 
how often some clause is repeated in successive reigns. But for 
our purposes the most satisfactory form of legal monument is a 
customary law committed to writing or edited by a responsible 
official, who is consciously aiming at setting down actual custom, 
as for instance the sieur de Beaumanoir, for Northern France, or 
Ghis 1'escrinewerkere of St Omer, or the town clerk of Briel, Jan 

1 Cp. Maitland, Coll. Pap. vol. III. pp. 3 f . 

2 It would be interesting to investigate how obsolete laws do perish in early times, 
especially when, as in Iceland and probably all over Teutonic Europe, some 
person is charged to repeat the law, verbally and unaltered, in the course of every 
three years or so. Even the Icelandic Sagas, with their strong interest in legal 
matters, give us no hint how a law could be annulled, though we hear of the 
passing of a clause to restrict the operation of a law (women no longer allowed to be 
plaintiffs in slaying-suits). Even in modern times, popular memory will sometimes 
cling for a long period to a law which has been repealed or fallen into desuetude, 
cp. Gomme, Folk-lore as an hist, science, pp. 196 f. 



INTRODUCTION 9 

Matthijssen. Both these last adduce cases in which the law, as 
they state it, has been actually applied in recent years. For 
their own period but not, in spite of re-issues, for later times 
their evidence is to be considered trustworthy. But where such 
evidence is lacking, we must turn to other sources, and it is here 
that the difficulties of our task become apparent. For the 
seekers after origins the laws are the best possible source, and 
they find these ready to hand in accessible editions. But we 
must rely, where we can find them, on contemporary literature, 
on the records of local courts, on registers of fines, on deeds of 
reconciliation and the like, and these are not always very 
accessible. As regards our first section, Iceland, we are indeed 
well provided with sources of the first-named class, and have 
little reason to lament the absence of other documents. In 
Norway, a number of wergild-receipts are available in printed 
form, and some of the Court records of the i6th century have 
been published. Sweden is publishing collections of charters in 
chronological order, but has so far only reached the first half of 
the 1 5th century. Recently a very small selection of Court 
records of the year 1608 has been published, but it is to be 
feared that most protocols of this kind are of too late a date to 
throw much light on our problem. Denmark has been fully 
alive to the value of her earlier judicial records, and has published 
several volumes of cases from the High Court; but little has so 
far been done with a view to making the records of local Courts 
available; and the example of Stemann, who edited extracts 
from the records of the rural jurisdictions of Schleswig, has not 
yet been followed. In Holland and Belgium much material of 
importance has been made accessible in various forms. But in 
Germany, though German scholars have edited and re-edited 
not only their own early laws but also ours, almost nothing has 
been done towards rendering accessible the material relative to 
the actual administration of justice, stored in innumerable bulky 
volumes in provincial archives. There can be little doubt that, 
in the North, these would be found to throw much light on 
kinship solidarity. Not only are they unpublished, however, 
but their contents are not indexed, and it would need the labour 
of a lifetime to extract from them sufficient material for more 



IO INTRODUCTION 

than a tentative treatment of the subject. The sketch con- 
tained in the present work is little more than a declaration of 
non possumus, and a similar admission must be made with regard 
to France, though in this case the shortcomings are partly due 
to the actual lack of material. For England, thanks to the two 
monumental editions of the Anglo-Saxon laws, and to the 
labours of Kemble and Birch, almost all the extant evidence is 
available in printed form. 

In the following pages we attempt to trace the varying fate 
of the kindreds in the various Teutonic countries. Our survey, 
however, does not include those parts of Europe which were 
originally, or for a time, Teutonic, but were overrun during the 
Middle Ages by other peoples. 

The plan followed in every chapter is more or less the same : 
a preliminary discussion of the laws, followed by an examination 
of such other evidence as has been available. At the end of the 
book, Appendix II. gives such longer excerpts from the sources 
as serve to illustrate the main theme. 



CHAPTER I 

ICELAND 

IN selecting Iceland as the first of these studies, we are 
guided not so much by the prevalent opinion that Icelandic 
society rested on a basis of kindreds, as by the fact that a great 
wealth of sources is at the disposal of the student, so that it is 
possible to control the evidence afforded by the laws. 

Besides Landnamab6k, the Book of the Settlement, and the 
more or less historical Sagas, which deal with the lives of petty 
chiefs and landowners up to the middle of the nth century, 
there is the group of later Sagas, known as the Sturlunga, which 
affords a contemporary view of Iceland for the greater part of 
the 1 3th century. From a study of Landnama in conjunction 
with the Sagas a great store of genealogical information can be 
deduced, which we shall find of great value in estimating the 
solidarity of the kindreds. Both Sturlunga and the other Sagas 
abound in references to the laws, and we are fortunate in possess- 
ing some private person's collection of the whole body of Icelandic 
law, known as Gragas. 

The main justification for the view which regards Iceland 
as almost a federation of kindreds is to be found in the section 
of the laws dealing with the division of wergild, entitled Bau- 
gatal 1 , which all scholars agree in regarding as the oldest part 
of the laws 2 , as indeed its archaic style testifies. It is proba- 
bly unchanged since 930, when Ulflj6t brought the laws to 
Iceland. 

In Baugatal the wergild as a whole is called b&tr, compen- 
sation (pi.), or sakar-bcetr, compensation for [slaying-]suit, or 



1 Grig. I. pp. 193207. 

2 B. M. 6lsen, Um silfurvert og vcffimdlsvet^S, Sktrnir, 1900, p. 6. 



12 



ICELAND 



^, 'kindred payments,' and it is divided into three main 
parts: (i) the baugr,to near kinsmen, (2) payments to a wider 
circle of kindred, (3) payments to 'increasers of fines/ sakankar. 
Agnatic Baug-recipients also get an extra payment, called 
Baugpak. 

I. Baug. 



II. 







Baug Baug}>ak 






(aurar). (aurar). 


(I) 


For father, son [or only unmarried daughter] 






and brother of the slain (3 inks. 1 =) 


24+6 


(2) 


Grandfathers and grandsons 


20+4 


(3) 




16 + 3 


\3J 

(4) 




12+2 


\TV 




72 + 15 




"Here end the baugar." 


(i.e. 87 aurar) 2 . 



(1) Male ist cousins once removed (i mk =) 

(2) 2nd cousins (5 aurar, i ortug = )... 

(3) once removed (3$ aur.) 

(4) 3rd cousins (2 aurar, i ortug) 

(5) once removed (i aurar) 

(6) 4th cousins (i eyrir) 



Ortugar. 
24 
16 

Il 

7 



(i.e. 21 aurar, 2 ortugar). 



III. Increasers of fines : 

(a) Illegitimate son, or son by thrall-woman. 

(b) Stepson. 

(c) Stepfather. 

(d) Son-in-law. 

(e) Brother-in-law. 



Totals 



12 aurar, 5 pennmgar. 
aur. ort. pen. 

87 

21 2 

12 5 



120 



5 



1 3 ortugar = i eyrir (ounce, pi. aurar) ; 8 aurar = i mark. 

2 In this table the tyeiti (doits), which are evidently of infinitesimal value, are 
omitted. 



ICELAND 1 3 

Excluding the ortugar and penningar we thus get a total of 
the old 'hundred' (120) of aurar. Each class pays to the corre- 
sponding class of the opposite side, thus the father, son and 
brother of the slayer pay to the corresponding kinsmen of the 
slain. It is to be observed that the slayer pays nothing, the 
assumption being that he was exiled and his goods forfeited. 
The kinsmen through females pay and receive one-fifth less than 
the agnates, and the agnates alone are concerned in the baugfrak. 

There are a great many regulations as to what is to happen 
if one class of recipients or payers does not exist. Roughly we 
may say that even if only one of the ba.ug-J>ayers exists, the 
payment of all four baugar devolves on him alone, but with 
certain reductions. If, on the other hand, there are no other 
legal recipients, the baug payment would be reduced to 63 aurar, 
including baugpak, instead of 87, thus reducing the total to 96 
aurar instead of 120. 

The outer circle payments (II.) are per stirpes, not per capita, 
and if any class of payers is non-existent, the class more remote 
pays the missing share, less a third, as well as its own. However 
there is nothing to show that any class could be responsible for 
more than one of the others, and supposing classes 2 6 were all 
non-existent, the total paid by II. would presumably be reduced 
to 13^ aurar instead of 2 if. 

The reciprocal payments seem to indicate a meeting of both 
kindreds, but there is no provision to ensure that all the kin 
pay their share, and no penalty mentioned if they omit to 
do so. 

If we compare these regulations with Saga wergilds the 
result is somewhat baffling. According to Baugatal the maxi- 
mum wergild, only paid if all classes of relatives exist, is 120 
aurar, but this maximum may be reduced to as little as 90 aurar 
by the absence of grandfathers and grandsons and of all cousins 
more remote than second cousins once removed. In view of 
these facts, it is surprising to find that the only wergild mentioned 
in the Sagas is a fixed sum, viz. a ' hundred of silver,' which may 
well represent 120 aurar 1 ; and that in the whole of the Saga 
literature we never come across this sum diminished by the 

1 See Appendix I. 



14 ICELAND 

absence of any class of kinsmen 1 . This is remarkable enough, 
but it is still more remarkable that we never hear of any division 
of wergild, on Baugatal lines, between various classes of kindred, 
nor of any dispute about wergild shares, either between kinsmen 
of the two opposing parties, or among the recipients or payers 
themselves. Kinsmen are ready enough to quarrel with one 
another, as we shall presently show, but there is not even a hint 
of a dispute about the division of wergild in any Saga, though 
one would have supposed that its arbitrary amount, fixed without 
respect to the existence or non-existence of classes of payers or 
payees, would have been a source of endless friction, if indeed 
it could ever have been exacted. Not a single quarrel in 
all the range of Icelandic literature turns on the division of 
wergild, though, as we shall see later, such disputes were common 
in other countries where the wergild was paid to the kindred. 
This absence of dispute as to the division of wergild might 
possibly be attributed to the extraordinary solidarity of the 
kindred, save for the enormous proportion of quarrels between 
relatives, on other points, mentioned in the Sagas. We often 
find that persons who should be receiving wergild, as relatives 
of the slain, had been in the fight on the side of the slayer, or 
that kinsmen of the slayer, who should help to pay his wergild, 
had been on the opposite side in the battle. In view of the large 
number of such cases, adduced below, and of the entire absence 
of any question as to the distribution of wergild in the sequel, 
the argument ex silentio becomes very strong indeed. The 
following instances may suffice : 

1 Professor Bjorn 6lsen, in a very interesting paper in the Arbbk hins hi. forn- 
leifaftlags for 1910, attempts to meet this difficulty (which he is the first to see), by 
distinguishing between manngjold, the compensation paid for slaying, which we hear 
of in the Sagas, and ni'&gjold, as described in Baugatal. He considers the former to 
consist of rtttr, a fine of six marks, plus a payment made by the slayer to the plaintiff 
to avert outlawry; while each relative secured his share of nf&gjold by his own 
exertions. Apart from the fact that such individual action on the part of each 
relative involves grave difficulties, and is found nowhere else in Teutonic territory, 
this theory is open to two main objections : (i) the absence of any mention whatever 
of nftgjold in the Sagas in spite of the number of individuals who would be concerned, 
and (2) the payment in lieu of outlawry would, as Prof. 6lsen himself remarks, vary 
according to the wealth of the slayer, so that the fixed manngjold remains as in- 
explicable as ever. 



ICELAND 15 

In the West: 

ffariSar Saga is chiefly concerned with the enmity between HorC and his 
uncle Torfi, and then with HorS's strife with his brothers-in-law, who finally 
lure him to his death. 

Bjarnar Saga hitdalakappa. Thorsteinn Kuggason makes friends witn 
Bjorn, and they agree that whichever of them survives the other shall 
take compensation for the other's slaying (ch. 29). Now it is already 
certain that if Bjorn falls it will be at the hands of his deadly enemy, 
Th6rO Kolbeinsson, and so it turns out. Th6r5 is Thorsteinn's third 
cousin *, but nevertheless Thorsteinn is the most eager of all against Th6rff, 
and presumably takes his share of the enormous compensation extracted 
from him. 

Eyrbyggja Saga. In ch. 24, Viga-Styrr, third cousin once removed of 
Th6rd gellir's sons 2 , supports their slayer, Eirik raufci, against their surviv- 
ing brothers. In ch. 44 Vfga-Styrr is on the opposite side to his son-in-law 
Snorri in a battle in which Snorri's son, Viga-St^rr's grandson, was mortally 
wounded. 

Laxdala Saga is a well-known instance of feuds within the family. They 
begin with Hoskuld's quarrel with his half-brother Hrut, in which four of 
the former's house-carles are killed. An actual encounter between the half- 
brothers is only averted by Hoskuld's wife (ch. 19), who points out that Hriit 
would hardly be so bold if he were not sure of the support of ThorS gellir, 
Hoskuld's first cousin 3 . Later (ch. 49) Bolli Thorleiksson kills his first cousin 
and foster-brother Kjartan Oldfsson : his brothers-in-law, the sons of Osvif 
(themselves fourth cousins of Kjartan 4 ), are the instigators of the crime and 
force Bolli to carry it out. Kjartan's father Olai gets the sons of Osvif out- 
lawed, but cannot find it in his heart to outlaw Bolli, his foster-son and 
nephew, and asks him to pay compensation. But Bolli's payment is in vain, 
for a few chapters later (ch. 55) the sons of Oldf attack him (he is their first 
cousin) and he is killed by one of their followers, Helgi HartSbeinsson. In 
ch. 6 1 Helgi's brother-in-law Thorsteinn is intimidated byThorgils Holluson 
into joining a party which attacks and kills Helgi HartJbeinsson ; and (ch. 67) 
Thorgils and Thorsteinn pay compensation. Thorsteinn paid two-thirds of 
the sum to Helgi's sons (his own nephews) and Thorgils paid the remaining 
third. 

Gisla Saga. To avenge Vdsteinn, his brother-in-law and sworn foster- 



1 Thorsteinn's great-grandfather, OlaT feilan, was brother of Thorn's great- 
grandmother Thorhild, d. of Thorsteinn rauiJ. 

/Au Thorsteinn rau 6la"f feilan Th6r$ gellir 
1 Ketill flatnef < 

Mijorn austrseni Kjallak Thorgrfm Vfga-Styrr. 

8 Hoskuld's mother ThorgerS was sister of 6la"f feilan, ThoriJ gellir's father. 

/AuS Thorsteinn ravrSr Thorgerft 6laT pai Kjartan 
* Ketill flatnef <( 

^Bjorn austrseni Ottarr Helgi Osvff sons of Osvff. 



16 ICELAND 

brother, Gfsli secretly slays Thorgrfm, the husband of his sister 1 . This 
sister eventually tells her second husband, Bork, Thorgrfm's brother, that 
her brother Gfsli was the slayer of his brother Thorgrim, and Gfsli is out- 
lawed. Twelve years pass, and Bork at last offers Eyjolf gri, who lives 
near Gisli's hiding-place, three 'hundreds' of silver (i.e. three whole wergilds) 
to slay Gfsli. Now Eyj61f is first cousin to the slain Thorgrfm 2 , yet he took 
no action until bribed to do so. He does however kill Gfsli, and then Gisli's 
sister, Bork's wife, wounds him in revenge for her brother. Bork offers him 
'self-doom' for the wound, and he awards himself a full wergild, which Bork 
pays. They are first cousins 3 . The story ends (ch. 28) with the slaying of 
Thorkell, Gisli's brother, by Berg, Gisli's nephew, in revenge for his father 
Ve'steinn's death, to which Thorkell had been a party. Whereupon Ari, 
another of Gisli's brothers, kills Berg. 

North : 

Vatsdcela Saga. Geirmund, son of the settler Saemund, is bribed to give 
up his first cousin Hrolleif (ch. 25). In ch. 29 Ma> fights with his first cousins 
the sons of Ingimund. 

Ljtisvetninga Saga begins with a fight in which Thorgeirr goSi is on one 
side and his son on the other : the son is wounded. In ch. 20 Gufcmund 
riki wants to burn a house with its inhabitants : he is not deterred by finding 
that his wife is in the house and refuses to come out, and he only abandons 
his intention when his son is also found to be within. In ch. 24, in a fight 
between Eyj61f GuSmundarson and ThorvartJ Thorgeirsson, we find Starri is 
with ThorvarS, his first cousin once removed 4 , although he is husband of 
Eyj61fs niece 5 . 

Vfga-Glums Saga hardly contains a fight which is not between relatives. 
Vfga-Glum begins by killing Sigmund, whose sister had married Vfga-Glum's 
brother (ch. 8). Th6rarinn, brother of Sigmund's widow, sues Glum for the 
slaying, though he is his second cousin 6 (ch. 9). The boy Arngrfm kills his first 
cousin Stein61f (ch. 21). Viga-Glum himself kills his second cousin Thorvald 
kr6k 7 (ch. 23) and is sued for the slaying by the chief Einarr Thveraeing 



Ari Th6rdfs Thorkell Gfcli = Au'S Vesteinn 

m. (i) Thorgrim | 

(2) Bork Berg. 

1 Thorgrim's mother Th6ra is sister of Th6r$ gellir, Eyj6lf s father. 
8 See 2. Thorgrfm and Bork are brothers. 

xHoskuld ThorvarS 
4 Thorgeirr go"Si v 





-Thorger'S Starri. 

6 Herdfs d. of Halldorr, Eyj61Ps brother. 

/Ingjald Eyj61f Vfga-Glum. 
8 Helgi magri f 

> Helga Th6rir Thorarinn. 

7 Thorvald kr6k is Thorarinn's brother. See preceding note. 



ICELAND 17 

(ch. 25), who is second cousin once removed both to the slayer and to 
the slain 1 . Vfga-Ghim's nephew wounds GuOmund rfki, his second cousin 
twice removed 2 (ch. 27). Landndma (p. 252) adds one more to these slayings. 
Thorvald of Hagi murders Grfm, his first cousin. Einarr Thverseing was 
plaintiff in the slaying-suit, which was defended by Vfga-Glum (Einarr's 
second cousin once removed 1 ) and by his son Ma"r, Thorvald's stepfather. 
Einarr had previously helped in the suit against Vfga-Glum on account of 
the slaying of Bclrd by Glum's son Vigfiiss (ch. 19), and had been aided by 
Thdrarinn Esphaeling, Glum's second cousin 3 . 

East: 

The men of the East have sometimes been credited with being less 
quarrelsome than the rest of their countrymen, but their Sagas are by no 
means free from slayings and quarrels within the limits of the kindred : 

Vdpnfir&inga Saga. It seems that Geitir kills Broddhelgi (ch. 13, there 
is a lacuna in the Saga). Broddhelgi had married Geitir's sister, but had 
sent her away when she became ill. Bjarni, Broddhelgi's son, Geitir's 
nephew, first gets a wergild from Geitir, but finally kills him. 

Droplaugarsona Saga. Grim is outlawed for the slaying of Helgi 
Asbjarnarson. Grim's first cousin Thorkell spak takes money from Grim's 
enemies to betray his hiding-place (ch. 14). 

Gunnars Saga Thferandabana. ThiSrandi, nephew of Ketill of NjartSvfk, 
joins an expedition with one Thorir Englandsfari to declare a suit against a 
house-carle of Ketill's. As usual on such occasions, a fight ensues, in which 
Th6rir, ThiSrandi's companion, kills Ketill, and ThiSrandi is killed by a 
guest of his uncle's. Helgi Asbjarnarson keeps the slayer of ThitJrandi in 
hiding, and his wife, though first cousin of ThiSrandi, refuses to let her 
brother get at her husband's prote'ge'. 

South : 

Njdlssaga. In the great attack on Gunnarr of HliSarendi (ch. 77) we find 
Eilif auSgi on the side of the attackers. Gunnarr wounds him, but they are 
first cousins or first cousins once removed 4 . In ch. 130 Flosi talks of killing 
his niece's husband, Ingjald of Keldar, for refusing to join in the attack on 
Bergthdrshvall. Flosi actually sends a spear at him across the river, and 



Helga Einarr Eyjolf Einarr Thveraeing 
^I 



x 
1 Helgi magri ^Ingjald Eyjolf Viga-Glum 



Ingunn Thorir Thorvald krok. 

2 See preceding note. Guflmund rfki is Einarr Thveraeing's brother. 

3 See note 6 on preceding page. 

/(Sigmund, Sigfiis Nj.) Rannveig Gunnarr 

4 Sighvat raut5i ^ 

\Thorger-S Eilff auSgi. 

The link Sigmund or Sigfiiss is omitted in certain MSS. See Lehmann and 
Schnorr v. Carolsfeld, Die Nj&lssage, pp. 179 180. 

P. 2 



1 8 ICELAND 

Ingjald returns it, killing Thorsteinn Kolbeinsson, his wife's first cousin. 
The irony of the situation, though the Saga writer does not perceive it, lies 
in the fact that Flosi is actually more nearly connected with Ingjald than 
with the Hoskuld whom he is avenging by his attack on Bergthorshvoll 1 . 

In all these cases it would seem impossible that the whole 
kindred, or even the greater part of it, should pay or receive 
wergild, and one would expect that a multitude of delicate 
questions would crop up, dealing with the right to wergild, or 
its forfeiture, among the near relatives of the opposing kinsmen, 
if indeed any custom approaching to that detailed in Baugatal 
was actually in force. Yet there is never a word of such a 
dispute. The ancient custom that there is no wergild and no 
vengeance for a slaying within the kindred 2 is obviously in entire 
abeyance. 

We have already seen that in Baugatal the slayer is not 
expected to pay any share of the wergild, the assumption being 
that he was outlawed and therefore without property. But as a 
matter of fact it is seldom the case in Iceland that a man of any 
importance is really outlawed or his property really confiscated 
for a slaying 3 . The suit is seldom pushed to its legal termina- 
tion, the settlement of differences being almost always finally 
adjusted outside the courts, and in such cases outlawry, or rather 
banishment for three years, is generally reserved for persons of 
minor importance. As regards the leader and instigator, the 
fines are his sole punishment. In this case it is natural that he 
should pay something of the wergild, but Baugatal hardly pre- 
pares us to find that he should pay it all. Yet this is frequently 
stated to be the case : 

Eyrbyggja Saga, ch. 26, tells us that Snorri goSi with six others kills 
Vigfuss of DrdpuhliS. With great difficulty his widow induces her step- 
mother's brother to take up the suit : there is a settlement at the Thing with 
large fines, and " Snorri j>aid up the money*." 

Laxdcela, ch. 67. Thorsteinn and Thorgils, the slayers of Helgi Harfc- 
beinsson, pay the compensation for his slaying : Thorsteinn paid two-thirds 

1 Ingjald had married Thraslaug, daughter of Flosi's brother Egill. Hoskuld 
Thrdinsson had married Hildigunn, daughter of Flosi's /4<z//-brother Starkaff. 

2 Cp. Seebohm, Tribal Custom in A.S. Law, pp. 63-4. 

8 See the cases adduced by Heusler, Strafrecht der Islander sagas, pp. 131 ff. He 
has not however distinguished between slayers of very different social standing. 
4 Ch. 27, "enn Snorri gait fe upp." 



ICELAND 19 

and Thorgils one-third 1 . The sole liability of slayers seems also to be 
suggested in ch. 71. Halld6rr and his brothers have slain Bolli (ch. 55), and 
when Bolli's sons get older they claim compensation. Halld6rr says : " I will 
agree, if that is the will of my brothers, to pay money for the slaying of 
Bolli"; but stipulates that there shall be no outlawry, and that he shall not 
have to give up his gaftorlS (chieftainship 2 ). Money was paid at the 
Thorsnessthing. In ch. 75 Thorsteinn Kuggason wants to buy HjarSarholt, 
Halld6rr's farm, observing that Hallddrr has little movable property (cattle 
and the like) "since he paid bcetr for their father to the sons of 
BolK** 

Hdvarfiar Saga. Thorbjorn ThjdSreksson has killed Olaf, son of 
HdvarS, on no provocation. Thorbjorn's brother-in-law, a just man, is 
shocked at the tale, and forces Thorbjorn to compensate HdvarS with three 
'manngjold* (wergilds), observing that he could not award as much as 
Thorbjorn deserved "because thou hast not got it 4 "; so he says he will pay 
one of the three sums himself (ch. 7). Thorbjorn is to pay on the spot : he 
manages to produce one manngjold, and declares it is all he has with him 6 . 

Grettissaga. In ch. 12 Flosi Eiriksson and his men fight the men of 
Kaldbak, a stranded whale affording not only the casus but also the locus 
belli, as well as many of the weapons. Flosi and his party are made sekir 
(banished for three years). Flosi "then became very short of money, because 
he wished to pay the compensations himself alone 6 " i.e. for his men as well 
as for himself. 

In ch. 43 Atli and Grim (the brother of Atli's brother-in-law) kill two 
sons ofTh6rir of SkarS. Peace is made, and "Atli would alone pay the 
compensations 1 " (i.e. without help from Grim). 

In Vallaljdts Saga Hrolf kills ThorvarS. Money is paid. Bjorn, 
ThorvarS's brother, and his men kill BoSvarr, a brother of Hrdlf, and three 
others, losing two men themselves. A settlement is made, and the slayings 
are equated, but in addition "Bjorn shall pay a 'hundred] and be quit 
therewith 8 ." 

Ljdsvetninga Saga. GuSmund riki kills Thorkell hdk (ch. 19). Thorkell's 

1 " Gait porsteinn tva" hluti bota vigsins, enn forgils skyldi gjalda Jriftjung, ok 
skyldi gjalda &. )>ingi." 

2 "|>essu vil ek jatta, ef j>at er vili brse'Sra minna, at gjalda fe* fyrir vig Bolla, 
...enn undan vil ek skilja sektir allar ok sv goiSoriS mitt, sva" staflfestu; slfkt et sama 
Jaer staiSfestur, er braeftr mmir btia a"." 

3 " 'hann hefir litit lausafe, sf$an hann gait J>eim Bollasonum f fd'Surbaetr. ...'" 

4 " ' Eigi kann ek, porbjbrn, at gera svi mikit fe" sem vaert vaeri, fyrir }>v( at }m hefir 
eigi til.'" 

6 " porbjorn gat goldit ein manngjold, ok kvaft )> lokit J>vi er hann hefSi til." 

8 " VartS Flosi sekr, ok margir jjeir, er at hofiSu verit metJ honum. Var$ honutn 
\Aftskylft mjok, {>vl at hann vildi einn halda uppfibdtum" 

7 Ch. 44, "Atli vildi einn halda upp febotum." 

8 Ch. 7, " Bjorn skal gjalda hundra'S, ok vera }>ar mefi frjdls." 

2 2 



20 ICELAND 

brothers meet him and his foster-son Einarr, and the latter says : "GuSmund 
will offer you ' bcetr' and a stiff wergild (manngjold)." The brothers agree, 
and " afterwards Guftmund paid up the money, and they were ostensibly 
reconciled 1 ." 

Viga-Glunts Saga tells how Vfga-Glum paid Ketill, the son of Thorvald 
kr6k, whom he has slain, half his farm Thverdrland " as compensation for 
his father" : the other half he was made to sell, having to leave the district 2 
(ch. 26). 

Fldamanna Saga? (ch. 34). The aged Thorgils orrabeinsstjup kills Helgi. 
Two years later his brothers come home from abroad, and Thorgils offers to 
pay full compensation for Helgi's death. He gives to one of the brothers a 
sword of value, and to the other five marks (40 aurar). 

Njdlssaga offers a sequence of slayings between dependents, each com- 
pensated for by the master, but as we have reason to cast doubt on their 
probability later on (p. 26) we will not adduce them here. 

In any case the above instances are sufficient to produce a 
strong impression that the slayer usually paid the whole wergild. 
As however Baugatal says nothing at all about the slayer's 
liability, these instances of his sole responsibility, though totally 
contrary to ancient custom, cannot be said to prove that 
Baugatal was no longer used as a guide in other cases, though 
the fact that wergild was constantly received and paid within 
the family makes us wonder how much heed could be paid to 
its provisions. 

But when we find that one or two individuals, not the 
slayers, are often credited in the Sagas with paying the whole 
wergild, we can hardly avoid the conclusion that Baugatal can 
only reflect a past age, not the period with which we are dealing. 
Instances are not far to seek : 

Eyrbyggja Saga, ch. 29. After Bjorn has slain the two sons of Th6rir 
viSlegg, Asbrand, B jorn's father, "ratified the settlement on behalf of his son 
Bjorn, and paid the compensation for the slayings, but Bjorn was banished 
for three years 4 ." 



1 "GutSmundr vill ySr baetr bj6"Sa, ok stinn manngjold... siflan greiddi Gutimundr 
fram feit ; ok va"ru sdttir at kalla." 

a " Glumr gait \rverarland, ha"lft Katli, syni porvalds, i fofturbcetr, enn seldi ha"lft 
viS verSi." 

8 Not a very good authority. 

4 " Asbrandr gekk til handsala fyrir Bjorn son sinn, ok belt upp tebotum fyrir vfgin, 
en Bjorn var sekr gerr utan urn J>rja" vetr." 



ICELAND 21 

Ch. 32. The undesirable Thdr61f baegif6t persuades a poor man to 
attempt the life of one Ulfarr, and promises " I will pay the compensation 
for the slaying 1 ." 

Bjarnar Saga hitdcelakappa. The rivals Bjorn and Th6rS agree that 
anyone reciting (insulting) verses by either of them could be legally slain. 
Bjorn hears Thorkell, son of Ddlk, reciting one of Th6rC*s verses, and kills 
him. Th6r5 considered himself to blame, and compensated Da"lk (ch. 20). 
Later on in the Saga (ch. 28), Thorsteinn Kuggason suggests that Bjorn 
should pay a little compensation for each of the men he had slain in his feud 
with Th6r5, and that he, Thorsteinn, should make up the difference between 
that and full compensation (though he is third cousin to Th6rS and no 
relation to Bjorn). 

F6stbrce$ra Saga. The foster-brothers are egged on by their hostess to 
kill two evil-doers who are under the protection of the chief Vermund (ch. 5). 
When they have succeeded she gives Vermund three 'hundreds' of silver 
for his ' thingmen ' : the brothers pay nothing. 

Vatsdcela Saga. Thorkell Krafla, who however is not fully recognized 
by his family, slays one GlaeSir. Thorkell's great uncle Thororm, and 
Thordis spdkona (a woman who is no relation to Thorkell) " paid all the 
money" (one 'hundred' of silver) 2 . 

Grettissaga. Atli, Grettir's brother, is killed by Thorbjorn oxnamegin. 
Grettir kills Thorbjorn, and Th6rodd drdpustuf, Thorbjorn's brother, sues 
him ; but as Grettir is an outlaw the case falls to the ground. But Atli's 
nephews sue Thdrodd for the slaying of Atli by Thorbjorn. "Thorodd now 
had to pay compensation for the slaying of Atli 3 ." 

Svarfdala Saga. Grfss, the fosterer of Klaufi, pays for a thrall that Klaufi 
has killed (ch. 15)*. 

Reykdcela Saga (ch. 19). Skuta kills two of the men who had been con- 
cerned in the slaying of his father. Thorsteinn, Skiita's brother, "paid 
compensation for them out of his money, as was laid down in the agreement 
between the brothers 5 ." In ch. 25, Skuta kills another man, Thorgeirr 
Thorisson, at the thing. His father-in-law Viga-Glum at once paid for him 
a ' hundred ' of silver ' there at the thing* j but Skuta is not grateful, probably 
considering compensation unnecessary. In ch. 29 Thorgeirr goSi lies in wait 
for Skuta, with the result that Skuta kills one of his men. Thorsteinn, 
Skuta's brother, and some other person (possibly Skuta himself) paid one 
'hundred' of silver 7 . 

1 " 'ek skal botum upp halda fyrir vfgit....'" 

a Vats. 44, " Guldu )>au porormr ok pordis alt feit ok skildust sa"ttir." 
8 Gr. 5i,"VafS poroddrmiat liika bsetr fyrir vfgAtla; var J>at tvenn hundru'S silfrs." 
4 " Grfei barust baetrnar, ok gait hann sex hundru'S silfrs." 

8 " baetti porsteinn J>a\ broftir Skutu, meiS sfnu fe, sem raett var ( maldogum mefl 
|eim brse'Srum." 

6 "Glumr gait fyrir hann hundra'S silfrs [ar a )>inginu." 

7 " Guldu |?eir porsteinn hundra'S silfrs fyrir vfg Vestmanns." 



22 ICELAND 

Nj&lssaga (ch. 12). Thorvald Osvffsson is killed, with his wife's con- 
nivance, by her kinsman. Osvff asks her father, Hoskuld, for compensation 
for his son (sonarbcetr). The award is two ' hundreds ' of silver, to be paid 
at once. Hoskuld produces it at once 1 . 

In all the above cases it is a near kinsman (father, brother, 
father-in-law, etc.) or the instigator of the crime, who pays the 
wergild, but there are a number of cases in which the chief (gofti) 
pays for his thingmaris misdeeds. It is not always the case that 
the chief is a relative of the slayer, and even if he is, Baugatal 
gives no indication that a chief should pay more than his share, 
far less the whole sum. To quote some examples : 

Thorskfirftinga Saga (ch. 14). Two men kill Thdrarinn akafi, and go to 
the chief Gull-Thorir for protection. Gull-Thorir pays lands of his own in 
compensation for the slaying of Th6rarinn 2 . 

Hdvarftar Saga. In ch. 1 1 HavarS kills the slayer of his son, and is 
protected by " Steinthorr " (probably meant for Steingrfm Eyjolfsson), a 
great chief, but no relation. When it comes to settlement, one ' manngyold" 
is shown to be due from HavarS's side. " Steinthorr pays also the 'hundred' 
of silver which had to be paid 3 ." 

Gretiissaga (ch. 16). Thorkell Krafla, a great chief, pays the compensation 
for a house-carle of his, whom Grettir had killed while under his charge 4 . 

Reykdcela Saga (ch. 23). Eyj61f kills Bjarni, sister's son of Viga-Glum, 
and appeals to his powerful first cousin Skuta for help. The result is that 
the wergild for Bjarni, a ' hundred ' of silver, is docked from the dowry Viga- 
Glum gives his daughter on her marriage with Skuta, so that though Skuta 
does not have to disburse anything it is he who pays the wergild 5 . 

Ch. 30. Olvir spaki and the sons of Thorir flatnef kill Skuta. Th6rodd, 
a chief, called 'kinsman' of the sons of Th6rir flatnef, pays the compensation 
together with Olvir spaki 6 . 

Droplaugarsona Saga (ch. 4). Thorkell Geitisson, a chief, and first- 
cousin of the sons of Droplaug, pays for their slaying of a freedman 7 . 

Surely these instances, taken from the length and breadth of 
the land, and from Sagas of all degrees of trustworthiness, go far 



1 "'Ok skal gjalda }>egar...ok leysa vel af hendi.' Hoskuldr ger^i sva." 
8 Between 910 and 930. 

* HaV. ch. 11, "Steinj>6rr geldr ok hundrafl silfrs j>at er gjalda atti." 
4 Grett. 16, " J?orkell...heltupp febotum." 

6 " skal Skuta sva" heima standa hundra'Sit, at Glumr gyldi j>vf minni heiman- 
fylguna." 

6 " Enn )eir halda upp botum fyrir ra"$in ok tilfb'rina, poroddr gofli ok Olvir hinn 
spaki...." 

7 Ch. 4, "lauk porkell K firir." 



ICELAND 23 

to prove that Baugatal was a dead letter as far as the mass of 
the slayer's kindred were concerned, and that in fact either the 
slayer himself, or some near kinsman, or the slayer's chief, 
actually paid the wergild. But since, in countries where the 
wergild system prevails, it occasionally happens that while the 
slayer s kindred has freed itself of all liability to pay wergild, 
the kindred of the slain have by no means relinquished their 
claim to receive it, it is necessary for us to examine the evidence 
of the Sagas with regard to this point also. We should almost 
feel justified in a negative answer based only on the argument 
ex silentio. We have already seen what a vast number of slay- 
ings within the kindred are mentioned by the Sagas. Yet there 
is never a hint of any quarrel as to the distribution of wergild, 
even when it is paid by one first cousin to another, in which case 
there would be many delicate points to settle as to the relations 
who would be precluded from receiving it owing to their close 
kinship with the slayer or their participation in the slaying. 
But fortunately there is a good deal of more definite evi- 
dence available, and we shall see that practically all of it 
goes to prove that the wider kindred of the slain participated 
no more in the wergild than did the wider kindred of the 
slayer. 

Thus we are told that Vfga-Glum pays Ketill, son of Thorvald krok, whom 
he has slain, half his farm Thverdrland as compensation for his father 1 , but 
there is no hint that Vfga-Glum paid anything more to other kinsmen of the 
slain. 

Similarly in Njdlssaga (ch. 12), when Hallgert? connives at the slaying of 
her husband, Thorvald Osvffsson. His father asks Hoskuld, her father, for 
'compensation for his son 2 ' sonarbcetr, and there is no mention of any 
other compensation. 

In Reykdala Saga Bjarni, Viga-Gltim's sister's son, is killed by Eyj61f, 
who seeks help from his first cousin Skuta. It is agreed that a 'hundred' of 
silver shall be paid for Bjarni, and that the money is to be handed over to 
his mother, Viga-Glum's sister 3 . 

In Grettissaga (ch. 51), Th6rodd pays compensation for the slaying of 
Atli. Atli's nephews receive the money but evidently not for distribution 



1 fifturbtztr. See above, p. 20. 
a Ch. 12. 

8 Ch. 23, "Bjarna skal bseta hundra'Si silfrs; |at skal Gliimr la"ta koma i hendr 
porgeriSi systur sinni enn motSur Bjarna." 



24 ICELAND 

among the kindred, nor yet for themselves, for the Saga adds "and took 
charge of it " evidently for the outlawed Grettir, Atli's brother 1 . 

The evidence that does seem to suggest compensation to 
more than one or two near kinsmen must now be given. The 
case most frequently quoted by scholars seeking to illustrate the 
working of the laws from the Sagas almost the only use, from 
a legal point of view, to which the Sagas have hitherto been put 
is that of the compensation paid for Bjorn hitdaelakappi in the 
Saga of that name. We will discuss the story in full. 

Before Bjorn's death he and his friend Thorsteinn Kuggason agree 
that whichever of them survives the slaying of the other shall take ' sektir 
ok flbcetr' 1 outlawry (of the slayer) and compensation for the other as 
if they were brothers (ch. 29). It is already quite clear that if Bjorn is 
killed it will be by Th6rft, who is Thorsteinn's third cousin. In ch. 30 
this ThdrS agrees with all his companions that whichever of them actually 
slays Bjorn, all should be bound to pay up, if money compensation is taken for 
him ; ThdrtS first, then Ddlk and Kdlf, the two other leaders. In ch. 32 
they kill Bjorn. In ch. 34, Asgrim, Bjorn's brother, who lives in the south, 
seeks out Thorsteinn, and they and Bjorn's friends prepare the suit for 
the Althing. ThortJ secretly makes a settlement with Asgrfm, the plaintiff, 
giving him three ' hundreds.' When this is discovered, Thorsteinn is very 
wroth, and summons the ' Myra-men,' i.e. Skiili Thorsteinsson, who was only 
Bjorn's second cousin by blood, but a foster-brother, Bjorn having been 
brought up at his home Borg. Thorsteinn tries to quash Asgrim's settlement, 
in spite of his first cousin ThorkelFs opposition. (Thorkell is only third 
cousin of ThorS, whom he supports against Thorsteinn.) Then Thorkell 
suggests that ThorS should not pay more, but that Thorsteinn should claim 
money from the other men at the slaying. Thorsteinn objects, and it is 
agreed that ThorS shall be further mulcted, as well as the others. Finally 
Th6rtJ is to pay, besides the three 'hundreds 'he had already paid to Asgrfm, 
another three ' hundreds ' to save himself from exile, and a third three 
1 hundreds ' to save Kdlf from exile. Twelve marks (96 aurar) is to be paid 
to commute the punishment of the remaining twelve men to exile instead of 
outlawry. Thorkell got the kinsmen of the exiled men to contribute towards 
helping the exiles 2 , and got them sent abroad. " The ' Myra-men ' also took 
much money from ThdrS for granting him peace, those who were kinsmen 
of Bjorn. Bjorn's father, with much money which he received, went to live 
with Thorsteinn, and As'grfm went back to the South with that money which 
he had got." 

1 "toku )>eir Gamli feit til sfn, ok varftvcittu." 

2 "lt fraenda )>eira leggja te til hjdlpar )>eim )>angat, ok kemr J>eim utan um 
sumarit." 



ICELAND 25 

So the father, brother and foster-brother (second cousin) of the slain man 
each got a large share, and also presumably Thorsteinn Kuggason, the third 
cousin of the slayer, a foster-brother of the slain. We cannot claim that 
Skuli Thorsteinsson got his share in virtue of being second cousin to the 
slain, for it is obvious from Thorsteinn Kuggason's case that foster- 
brotherhood constituted the real claim. Thorsteinn Egilsson, Skuli's father, 
had fostered Bjorn. Those who look upon this story as a confirmation of 
Baugatal forget the important fact that Th<5rS evidently thinks he will get off 
with one payment to the slain man's brother, and that the My>a-men take no 
part in the affair until summoned by Thorsteinn Kuggason, who is no relation 
of Bjorn's. As a matter of fact, Bjorn had plenty of nearer relatives who 
play no part in the suit at all. Thus we do not hear of his first cousin, 
Thorfinn Arnorsson thvara 1 , nor of his second cousins Thorolf and Holm- 
gongu-Bersi, sons of Ve*leif gamli 2 , nor of his seven first cousins once 
removed, the sons of Thorgeirr 3 , or their descendants. Some of these must 
certainly have been living at the time. The whole story proves nothing 
more than that foster-brothers, if sufficiently energetic and well-supported, 
can obtain a share of wergild. 

Another case in which 'kinsmen' are mentioned occurs in Vallaljots Saga 
(ch. 2). Halli has been killed. His son Bersi asks the chief Guffmund riki, 
his third cousin once removed, to take over the suit, and himself goes 
abroad. Ch. 4 : "At the althing a ' hundred ' of silver was paid for the 
slaying of Halli." GuSmund was not content with the way things turned out, 
but took charge of the money for the kinsmen of Halli*. The word 'kinsmen ' 
is also mentioned in Ljosvetninga Saga (ch. 28) : A certain Mdr, suspected 
of having done away with a kinsman, is finally induced to repent, and give 
half his goods to the poor, and half to the kinsmen of the man he had done 
away with. With regard to these two cases it is sufficient to point out that 
the word ' kinsman,' frandi, is constantly used of son or brother, so that its 
use here may refer to only a very narrow circle of kinsmen 5 . 

It will be noticed that so far we have not dealt with most of 
the wergilds in Njalssaga. It is because they seem to us some- 
what suspicious. The early part of the Saga (Nj. 36 45) gives 
a series of slayings between the houses of Gunnarr and Njeill 



1 Son of Bjorn's father's sister. 

C^-rsi Arngeirr Bjorn hitdaelakappi 
irbjorg Ve"leif gamli Holmgongu-Bersi and Thorolf. 
< Thorgeirr Grim f SkartSi and six other sons 
Thordfs Arngeirr Bjorn hitdaelakappi. 

4 "varftveitti feft til handa fraendum Halla." So far as we know, Bersi was the 
only kinsman for whom the money needed to be ' kept.' 
8 See supra, p. 6. 



26 ICELAND 

three on each side beginning with servants, but finally reaching 
Gunnarr's kindred. 

First HallgerS, Gunnarr's wife, bids her servant Kol kill Svart 1 , a house- 
carle of Njall's. Gunnarr pays 12 aurar compensation. Then Njall's wife 
sends her house-carle Atli to kill Kol. Njall pays back the same 12 aurar. 
Then HallgerS gets her kinsman Brynjolf to kill Atli. Gunnarr pays a 
' hundred.' Then the son of a freedman of Njall's, ThorS, kills Brynjdlf. 
Njall pays a 'hundred.' Then Sigmund, a cousin of Gunnarr's, kills ThorS. 
Gunnarr pays two ' hundreds.' Then the sons of Njall kill Sigmund. Njall 
and his sons pay two ' hundreds.' There is something so very symmetrical 
about this that our suspicions are aroused. Why does not some kinsman of 
Brynjolf's appear on the scene after Brynjolfs slaying? And why does not 
some nearer kinsman of Sigmund's (they are all in the district) appear to 
receive wergild after Sigmund's slaying ? Surely only because it would spoil 
the symmetrical interchange of wergilds, which pleases the Saga-writer. But 
to proceed. 

In ch. 56 Gunnarr and his brother Kolskegg make a settlement at the 
Althing for having killed eight persons. The slayings were compensated for 
according to the estimate of the worth of the slain..." and Gunnarr's kinsmen 
produced money so that the slayings were all paid for there at the Thing 2 ." 
What kinsmen we do not know. In ch. 61 Gunnarr kills a number of men 
who attacked him, and his brother Hjort falls. These men were com- 
pensated for by " half-compensations." (Ch. 64) Njall had much money lent 
out to these attackers of Gunnarr, and he gave it all to Gunnarr towards 
these compensations. (Njall and Gunnarr are friends, not kinsmen.) Gunnarr 
had so many ' friends' (vini) at the Thing that he paid up for all the slayings 
at once. According to ch. 69 he seems to have paid some land which had 
belonged, or did belong, to his mother. 

Ch. 72. After Gunnarr's next slayings Njall produces fourteen 'hundreds' 
of silver, plus interest, which he had taken from Gunnarr's enemies for an 
attack which he had foiled, and this was as much "as Gunnarr had to pay 
for himself 3 ." 

Nj. 77. Gunnarr, now an outlaw, is at last killed. 

Ch. 79. SkarpheSinn, son of Njall, and Hogni, one of Gunnarr's sons, 
take a considerable revenge, and make one MorS pay all the resulting com- 
pensations as the price of his own reconciliation with them for his part in 
the slaying of Gunnarr. (Gunnarr's other son takes no part in this 
vengeance.) 

Nj. 92. SkarpheSinn, son of Njall, kills Thrainn, whose brother Ketill is 
married to SkarpheSinn's sister. Ketill appeals to Njall, who bids him 

1 The conjunction of the names Kolr (a proper name originally meaning ' black 
tom-cat,' from kol, 'coal') and Svartr 'black,' itself suggests a 'faked' story. 

2 " gaTu froendr Gunnars fje til, at J>egar va>u baett upp 611 vfgin )>ar a Jnnginu.'' 
" itti aft gjalda fyrir sik." 



ICELAND 27 

induce his brothers, who have to take 'baugar 1 ,' to accept an amicable settle- 
ment, and urges him to meet all those " who had to take payments 2 ," and 
make peace with them. Ketill goes to see his brothers and made them all 
meet at HliOarendi, where " manngjold" was awarded for Thrdinn's slaying: 
"they all received compensation as the laws provided 3 ." Njall paid the 
money. But (ch. 98) Lyting, husband of Thrdinn's sister, kills one of the 
sons of Njdll (Hoskuld) and defends himself by saying : "Everybody knows 
that I have received no compensation for my brother-in-law 4 ." 

The wergild cannot, then, have been paid according to the directions of 
Baugatal, and indeed it seems only to have been received by brothers of the 
slain and to have been paid by the father of the slayer. There is, moreover, 
a mistake in the use of the word 'baugar' in ch. 92. (i) The 'baugar' extended 
to first cousins (see p. 12 supra) and here only brothers are mentioned as 
receiving them ; (2) secondly, brothers should only receive one 'baug,' not 
'baugar,' unless there are no other 'baug' relatives. In this case there are first 
cousins 6 (not mentioned here) who would have a claim to ' baugJ (3) Thirdly, 
this is the only passage in the whole range of Saga literature where wergild 
is called ' baug ' as in Baugatal, and not merely ' compensation ' (batr) or 
manngjold, so that its use here seems trebly suspicious. In order to explain 
these discrepancies, it has been suggested 6 that the outer circle of relatives 
and the sakaukar only received payment according to Baugatal if there were 
no baug recipients, a hypothesis which is hardly tenable in itself, and still 
fails to meet the objections (i) and (2) stated above. 

Njdla has been accused by Lehmann and Schnorr von Carolsfeld 7 of 
having drawn too freely and with too little discretion on a collection of laws, 
in order to fill in the details of litigation in the Saga, and though Prof. Finnur 
J6nsson's defence of the Saga 8 has vindicated it in several points, he has not 
quite cleared it. Surely we are justified in adding this use of the word 
'baugar' to the indictments against it. 

In ch. 99 the sons of Njall kill Lyting's two brothers : there is a settle- 
ment, and Luting is to pay full compensation (two ' hundreds ' of silver) for 
Hoskuld. 

Ch. 106, in which Lyting tells the blind Amundi, Hoskuld's illegitimate 
son, that he has paid full compensation for Hoskuld, and that Amundi's 
grandfather and uncles (Njall and his sons) received it, and that he will not 

1 Nj. 92, " brae'Sr )>fna \i. er bauga eiga at taka." 

2 " er gjbld dttu at taka." 

* " toku f>eir allir vifl borum sem log stoftu til." 

4 " f>at vitu allir menn, at ek hafi vlS engum botutn tekit eftir prainn mag minn." 

5 Sigmund kleykir, Eilff autSgi (sons of Onund) and ModJ gfgja. There are also 
nephews who would be entitled to ' baug.' 

8 Arnljotr (MaTsson, " Ura logaura og silfurgang fyrrum a" Islandi," in Timarit 
hins hi. B6kmtntafelags, 1904. 

7 Die Njalssage insbesondcre in ihrcn juristischen Bestandtheilen, Berlin, 1883. 

8 Aarbjgerfor nord. Oldkyndighed, 1904, pp. iisff. 



28 ICELAND 

pay any more, whereupon Amundi kills him, is admitted by the staunchest 
supporters of the Saga to be an interpolation, so we need not discuss it. 

In ch. in the sons of Njall are induced by slanders to kill their foster- 
brother Hoskuld, son of Thrdinn. His widow makes Ketill, uncle of the 
slain, promise to avenge the deed, though he is brother-in-law of the slayers. 
The arbitrators award six ' hundreds ' of silver, half of it they are to pay 
themselves, though some of them are relatives of the slain. Njall pays one 
' hundred ' : his sons and son-in-law Kaii another ' hundred ' : all those 
present at the Thing are said to subscribe the rest. The settlement however 
is not concluded, and the money is laid by. 

Ch. 130. Flosi, step-uncle of the slain Hoskuld's widow 1 , leads an expe- 
dition agains Bergthorshvdll, the home of Njall and his sons, and sets fire to 
the buildings. Njall, his wife and his sons, all perish in the flames : only 
Kdri, Njdll's son-in-law, escapes. Ch. 145 : Kri joins with Thorgeirr Skorar- 
geirr, Njall's father's brother 2 , Thorleif krak, Njdll's first cousin, and 
Thorgrim mikli, brother of Thorleif 3 , and with Asgrim ElliSagrimsson, 
father-in-law of one of Njall's sons. There is a great fight at the Althing, 
and finally a settlement is made, which Kri and Thorgeirr Skorargeirr refuse 
to join. It is noteworthy that the great chief Hall of SfSa renounces any 
compensation for his son, and a general subscription, amounting to four 
wergilds (eight ' hundreds ' of silver), is made on his behalf. Ch. 146 : Kdri 
and Thorgeirr kill five persons ; whereupon Hall of Si'Sa urges Flosi to come 
to terms with Thorgeirr, at any rate. Thorgeirr will not pay for any of 
these slayings, but will take his third of compensation for Njall and his 
sons. This seems to presuppose that Thorgrim mikli and Thorleif krak 
have each had a third of the bcetr. But according to Baugatal Thorgeirr, 
Njall's father's brother, should have more wergild than the other two, who 
are only first cousins. Moreover the Saga never regards the fact that Njd.ll 
has other relatives, as can be seen from the following table : 



Thorgeirr 


ThorgerS 
m. Ketill auSgi 


Njall Alof 
m. Thorberg Kornamuli 


i 
Thorgerd' 
m. Finn 
Otkelsson 


Helgi AsgertJ 


Eysteinn Hafth6ra 



m. EiS Skeggjason 

i l 

Eysteinn Illugi 4 

Here as elsewhere Njala's evidence is halting and incon- 
sistent, and it is moreover totally unsupported by the vvergild- 

1 So Njdlssaga. 

a According to Landndma Thorgeirr is Njdll's first cousin. 

* According to Landndma Thorgrim mikli is Njdll's step-uncle. But see Lehmann 
and Schnorr v. Carolsfeld, pp. 172-5. 

4 The sons of ErS Skeggjason were fighting men at this date, but lived in the West. 



ICELAND 29 

cases in the other Sagas. It is best explained on the hypothesis 
that the author had some slight acquaintance with a wergild law 
resembling Baugatal, but that he had not knowledge enough to 
fill in the details. From all other Saga literature we are forced 
to the conclusion that during this period Baugatal was a dead 
letter, and that the wergild customs actually in force show almost 
no traces of any solidarity of the kindred. 

We will now consider the evidence for the I2th and I3th 
centuries, contained in the Sturlunga group of Sagas. 

Inter-family feuds reach such a pitch that any arrangement 
of wergilds on Baugatal lines becomes almost unthinkable. 

Thus we find GuSmund dyri joining with Kolbeinn Tumason to set fire 
to the house of Onund Thorkelsson. With Onund perishes his son Thorfinn, 
who is GuSmund dyri's son-in-law 1 . The long strife between the Sturlung 
brothers begins when Snorri takes sides with the men of Oddi against his 
brother Sighvat 2 . A few chapters further on we see Saemund, the chief of 
the Oddi family, standing by helpless while Bjorn, who was the son of one 
of his nieces, and had married another niece, is killed by Lopt, Saemund's 
nephew 3 ; and later Ssemund is much blamed for not helping the latter. 
What part of the enormous wergild paid for Bjorn can Ssemund, his great- 
uncle, have had? Then Snorri sues his nephew Brand Jonsson to outlawry 
about an old money dispute which he had had with his sister Steinun, Brand's 
mother 4 . Brand must have been "small friends with the rest of his kin," as 
the Saga says later 5 of Sverting Thorleifsson, another nephew of Snorri's ; 
and again later 6 of another kinsman of the Sturlungs, LotJinn Sigurtfarson. 
Then we hear how Sturla Sighvatsson attempts to blind his first cousin 
Oraekja 7 , and later again Sturla fights with another cousin, Thorleif ThorSar- 
son, and insists on his leaving the country 8 . The battle of Orlygsstaft shows 
Kolbeinn ungi first wounding Sighvat, his aunt's husband, as Sighvat lies 
exhausted on the battle-field, and finally standing by to see Kolbeinn and 
ThorS, Sighvat's sons, and his first cousins, killed in cold blood 9 . 

The Saga of the first generation of Sturlungs ends with the expedition 
planned by Kolbeinn ungi, Gizurr, and Ami oreiSa, all once sons-in-law of 
Snorri, to effect his death 10 . Klaeng, Snorri's stepson, is on the expedition, 
and BoSvarr of StatS, Snorri's first cousin, meets the slayers and agrees to keep 
watch on Snorri's son Oraekja for them. Later he and his brother intercede 



1 Sturl. i. p. 194. The edition quoted is that of Kr. Kalund, published by the 
Kgl. nord. Oldskrift Selskab, Copenhagen, 1906-11. 

2 I. p. 242. 3 i. p. 345. 4 I. p. 392. 
8 i. p. 408. 6 II. p. 169. 7 i. p. 485. 

8 i. pp. 497-8. 9 i. pp. 527, 532. 10 I. pp. 552-3. 



3O ICELAND 

for the life of Klaeng, one of Snorri's slayers. Matters do not improve 
in the second volume. Kolbeinn ungi captures his first cousin Tumi Sigh- 
vatsson, and has him slain 1 . On the arrival of Th6rS kakali, Tumi's brother, 
even those of his relatives who have offered to support him draw back 2 , and 
Einarr Vatsfirfling and his mother, who is ThorS's first cousin, send round to 
bid all their neighbours join his enemy Kolbeinn 3 . 

Svinfellinga Saga deals with the quarrel of Saemund Ormsson with his 
aunt's husband Ogmund. Saemund's first cousins, ThorvarS and Odd, the 
sons of Th6rarinn, join Ogmund, their uncle, whereas Teit, their first cousin 
once removed, joins Saemund's party. Finally Ogmund has Saemund and 
his brother Guflmund killed in cold blood 4 . 

In the battle of Thverar-eyri between Eyj61f and Hrafn on the one side, 
and Sturla and Thorgils on the other, we find AutJunn Thdmasson (and 
probably his brothers) on the side of his third cousin Hrafn against his first 
cousin Thorgils and his uncle Sturla 6 . SvarthofSi Dufgusson 6 is also on 
Hrafn's side, but he is married to Hrafn's sister and is only second cousin of 
Thorgils and Sturla. The latter win the day, and have Eyjdlf put to death. 
He is the husband of Sturla's first cousin once removed 7 . 

ThorvarS Thorarinsson attacks and kills his second cousin Thorgils 
skarCi 8 . 

Hrafnssaga ends with the slaying of Hrafn by his first cousin once 
removed, Thorvald vatsfirSing 9 . 

That these quarrels among kindred are not limited to the 
chiefs is clear from incidental remarks in Sturlunga : 

We are told of one Gldm who kills his mother's brother Geirr 10 , and of 
Eyj61f R6gnvaldsson,who is with Einarr Asgrimsson in his attack on Vigfuss 
of BreiSabolsstaS, when it turns out that Eyj61f 's father is in the house which 
they are burning. Eyj61f bids him come out, but he declines to do so unless 
Vigfuss may come out too. His son cries out with an oath, " Burn then, old 
man," and the father presumably perishes in the flames 11 . In several of the 
battles kinsmen of humble rank were fighting against each other, as can be 
seen from the account of Haugsnes : " Eyj61f Thorsteinsson was able to 
capture Einarr lang his kinsman, and gave him quarter.... Several men were 
captured there to whom quarter was given by various kinsmen or friends 12 ." 
And before the sea-fight in Fldi, when ThorS kakali offers quarter to all 
EyfirSings in his enemy's fleet, the other side hurriedly silence him, be- 
cause they thought it not unlikely that some who had lost kinsmen, as yet 



1 u. pp. 55 56. 2 ii. p. 60. 3 n. p. 81. 

4 n. p. 127. * n. pp. 268, 270. 6 ii. p. 370. 

7 n. p. 269. 8 n. p. 297. 

Sturl. ed. G. Vigfusson, Oxford. Hrafns. S. ch. 20. 

10 I. p. 536. n. p. 184. 

u II. p. 97. 



ICELAND 31 

uncompensated, at the previous battle, might change their minds about 
following ThorS's enemy Kolbeinn 1 . 

We must now consider who paid and received wergild in the 
Sturlung period. 

The power of the gdbar, already on the increase in Saga 
times, is now at its height, and we find that humbler folk appeal 
to a chief if they want help in securing wergild. 

Thus on Hneitir's death his widow and children apply to Thorgils Odda- 
son, who gives them 12 'hundreds' (of ells of wadmal) on condition that 
he shall keep whatever he gets out of the chief HafliSi, with whom the slayer, 
HafliSi's nephew, has taken refuge. Thorgils claimed 30 ' hundreds ' : 
" HafliSi paid the money to Thorgils as agreed, slaying-money after 
Hneitir 2 ." 

In Slurlu Saga Alf applies to Sturla after the wounding of his son Bar5. 
Sturla sued on BdrS's behalf and claimed 25 'hundreds' as compensation for 
him 3 . In Guftmundar Saga Dyra, Hakon, GuSmund's nephew, has killed 
Hrafn. GuSmund, who is now a^tfS/, sends for Hrafn's brother, "who had 
to take the slaying-suit and money compensation after Hrafn," and induces 
him to accept 45 ' hundreds.' GuSmund paid then at once every ' eyrir ' of 
it partly in land 4 . 

There is plenty of proof that individual chiefs paid for their 
own misdeeds without calling on their kindred for help. 

After the burning of Onund and his son by Kolbeinn and GutJmund dyri 
the awards for compensation for life and property amount to vast sums, 
including one ' hundred ' of ells for each man present on the attacking 
side, and '' Kolbeinn was to pay half that money, and pay half the compen- 
sation for Onund 5 ." After the Thing "GuSmund at once began to pay the 
money (his share), all that he could, out of his stock, both horses and other 
things of value as much as he could spare, all the summer through 6 ." 
Guftmund and Kolbeinn are however dispensed from paying the whole 
amount, as Thorgrim alikarl, Onund's son-in-law, who had taken the chief 
part in the settlement, kills several of the burners, and so breaks the peace 
again. Finally Thorgrim attacks Guflmund and is defeated, so has to accept 
Guffmund's terms : " all the offences were then paid for, and then Thorgrim 
was penniless withal. And all the more important of those who had been 
present [at the attack] paid something 7 ." 

1 n. p. 66. 3 i. p. 16. * i. p. 103. 

4 i. p. 169. B i. p. 198. 

6 i. p. 198, " tok Guftmundr }>egar til at giallda fe, alt J>at er hann ma'tti or bui 
sfnu. Hann gait bae^Ji ross oc ajra gripi allt )>at svmar i gegnum, sva sem hann matti 

mij>la." 

7 i. p. 218. 



32 ICELAND 

Sighvat, son of Sturla ThorSarson, kills a man. Th6rS, Sighvat's brother, 
paid the compensation 1 . (Sighvat had not yet received his paternal inheri- 
tance, see I. p. 238.) 

Kalf Guthormsson kills Hall Kleppjlrnsson. Hall's brother Klaeng gets 
'self-doom' from Kalf, and awards 240 ' hundreds.' "Kalf paid all this money 2 ." 

Thorvald vatsfirtJing slays Hrafn. Magnus ThorSarson, Hrafn's sister's 
son, sues, because Hrafn's sons were too young to do so. A sum of 120 
'hundreds' is awarded, of which the plaintiff, Magnus Th6rSarson, is to get 
30 'hundreds,' so the rest presumably goes to Hrafn's sons 3 . The minor 
persons implicated evidently pay nothing. 

Sturla makes an award against Thdrff vatsfirSing for various slayings. 
"Th6r$ paid then no 'hundreds.' He paid a ship's hull (?) 4 , a farm, the 
right of flotsam on two stretches of fore-shore to the amount of 18 'hundreds,' 
and something in gold and silver 6 ." 

Sturla has the Vatsfirflings Thdrfl and Snorri slain. "Inheritance and 
compensation after them Einarr their (half-)brother had to take, but Illugi 
their (illegitimate) brother was plaintiff in the suit," Einarr being a child 6 . 

Kolbeinn ungi demands 50 'hundreds' for the slaying of his house-carle 
Thdralf. Brand, who has had Thdralf killed in revenge for the slaying of 
Kdlf (see above), paid land, which his mother-in-law offered; she was the 
daughter of KalR 

Th6rhall asks Thorleif beiskaldi, his^tf&Y, and Einarr Thorgilsson, another 
gcfti, for help against Sturla, and they suggest that they will get rid of Sturla 
if he, Thorhall, will pay the wergild 8 . 

Vfga-Hauk attempts to kill Thorvald vatsfirSing, but is foiled. After- 
wards it appears that Lopt and Gfsli, sons of Markus, were to have paid the 
compensation on Hauk's behalf, if he had been successful 9 . Under the 
circumstances they refuse to pay. 

Kol auSgi (the wealthy) is declared by Orm Svmfelling to have promised 
him 120 'hundreds' if he killed Dagstygg J6nsson, but Kol denies it 10 . 

Tumi Sighvatsson's father and brothers have been killed at OrlygsstaS. 
His uncle Snorri agrees to ride with him to the Thing to see about a settle- 
ment and compensation for his father for him 11 . It does not seem to occur 



1 i. pp. 237-38. 

2 I. p. 297, " petta fe gallt Kallfr alt sem giortt var...." 

8 I. p. 317. 4 "skip-stvfinn." 

8 I. p. 420, " Gallt porj>r )>a IX. tigi hvndraSa. Hann greiddi skip-stvfinn, ok 
Inngvnnar-staiSi i KroksfirtJi, XVIII. hvntJrat i reka aa Reykia-nesi ok i Skialldabiarnar- 
vik, ok i gvlli ok silfri nokkot. Mseltu menn, at feit uaeri skoroliga af hendi greitt, 
ok )>at mun'Si mikit kosta. ' Vist er fe-gialld mikit,' sag15i f>6r)>r, ' en vel ann ek J>eim, 
er urS tekr.'" 

6 I- p- 443- 7 I- P- 540- 

8 i. p. 100. ' i. p. 299. lo i. p. 501. 

11 i. p. 548, " Snorri skyldi rrSa til )>ings ok hafa Tuma meS set ok sea safettir ok 
faitKur-bcetr honum til hannda." 



ICELAND 33 

even to Snorri, fond of money though he is, that he himself could claim as 
much compensation for Sighvat as Tumi, though that is the case according 
to Baugatal. 

After the slaying of Snorri his illegitimate son Oraekja claims, and 
eventually gets, compensation (240 'hundreds') 1 - There is no talk of 
Snorri's sister's son getting any compensation, though the slayers give him 
a share of Snorri's inheritance, in order to induce him not to claim more of 
it 2 . Oraekja evidently pays the whole wergild of Klasng, whom he slew 3 . 

We find Ogmund paying 90 'hundreds' each for the slaying of his wife's 
nephews, Sasmund and GuSmund Ormssynir*. 

After the death of Thorgils skarSi, Bishop SigvarS claims 40 'hundreds' 
from Thorgils' brother Sighvat, which he says he paid on Thorgils' behalf 
for a slaying. Sighvat promises to pay 8 . 

A settlement is made with ThorvartS, the slayer of Thorgils. ThorvarS 
is to pay 150 'hundreds.' Of this sum he is to hand over 40 'hundreds' to 
the bishop, in settlement of his claim, mentioned above, 20 'hundreds' to 
another creditor of Thorgils, and 60 'hundreds' he is to pay to Thorgils' 
brother Sighvat 6 . ThorvarS also has to pay for two other slayings, 60 
'hundreds' each. "All these compensations for slayings... ThorvarS paid well 
and handsomely 7 ." 

Lopt kills a follower of his half-brother Gisli. He is banished from the 
district and has to pay much money 8 . 

It seems however that gdar are able to levy contributions 
towards the compensations they are liable for, but they claim 
them from their thingmen, not from their relatives. 

Thus when Thorgils Oddason has to pay the enormous indemnity of 
28,000 ells, more for his warfare against Haflidl than for the original injury 
(cutting off one of HafliSi's ringers), he receives a third of the sum while still 
at the Thing " from his friends and kinsmen," and a great many people gave 
him handsome gifts on his way home ; but finally money was craved all 
over the VestfirSinga quarter 9 . 

In the quarrel between the chief Kolbeinn and Bishop GuSmund, the 
farmers pledge themselves to pay such money fines as the Bishop awards. 

1 I. p. 574. Oraekja is to pay Gizurr 600 hdr. for an attack. Gizurr is to pay him 
360 hdr. for an attack. The difference is to be Snorri's wergild, so neither disburse 
anything. 

2 i- PP- 553-4- 

3 I. p. 574. For Klaeng's slaying \\ hdr. is to be paid, "par skal gjalldaz 
Reykia-hollt haalft, Stafahollt haalft, Bersa-sta'Sir haalfir (Snorri's properties which 
Oraekja inherits) ok go"S-orfc J>au er Snorri haf5i haft." 

4 II. p. 130. 5 II. p. 306. 6 II. p. 307. 

7 " Vlgsbaetr allar, )>aer sera dsemdar varu fyrir vfg porgils, greiddi porvartJr vel 
ok skoruliga." 

8 I. p. 302. 9 I. p. 46. 

P. t 



34 ICELAND 

The bishop claims 12 'hundreds': half the money was paid, but half not, 
because Kolbeinn wanted the Bishop to claim it from the farmers who had 
promised it, but the bishop wanted to claim it from Kolbeinn himself 1 . 

Aron goes into the West Firths, where he was chief, and "asked for 
money for the slaying-fines, and got some V 

We must now cite all the evidence that can be brought 
forward in support of a Baugatal division of wergild in Sturlunga, 
but it amounts to almost nothing. 

Snorri, Sturla's brother, and Ingjald, Sturla's son-in-law, go bail (gengu 
til handsala) for Sturla when awards are made against him at the Thing. 
Sturla however considers the awards unjust, and has no intention of paying. 
He advises Ingjald not to pay either, and Snorri does not pay because he 
sees that it would be useless. This may only mean that Snorri and Ingjald 
were expected to pay if Sturla did not, but it may mean that they were to 
contribute something in any case 3 . 

In another case we hear of one Olaf Vifilsson who had ' gone bail ' for his 
kinsman Thorsteinn at the Thing. " But nothing was paid," and so Thorsteinn 
remains an outlaw. The bishop, to whom he applies for help against the 
winter, advises him to apply to his surety Olaf, hoping that the latter would 
contribute towards Thorsteinn's support that sum which had not been paid 
towards freeing him from outlawry. However nothing can be got out of 
Olaf 4 . 

We cannot tell how much responsibility these 'bails' had. Hrafn, who 
is one of the bails in the award after the slaying of Markus, is a relative of 
the slain man (first cousin once removed) 6 . The slayer, however, is his 
thingman. 

The disintegration of the kindred seems even more complete 
in the Sturlung period than in the preceding one. This circum- 
stance opens the way to a criticism of the value of the evidence 
given in the earlier Sagas. No Saga, it may be urged, was 
committed to writing until the Sturlung age, and it is possible 
that the absence of any sense of the duties and privileges of 
kinship, which is so marked a feature of this period, may have 
been reflected into the earlier times by those who committed 
the earlier Sagas to writing. If the decline of the kindreds was 
progressive, it is possible that the earlier periods may have had 

1 i. p. 777. 

2 II. p. 185, "F6r Aron \>& vestr i fjgrtJu ok beiddi ser fja> til vfgsbotanna, ok 
hann fekk ngkkut." 

3 I. P- 86. < I. p. 309. 
8 Hrafas. ch. 7 (Vigfiisson's ed. of Sturlunga). 



ICELAND 35 

a stronger sense of the ties of kindred than actually appears in 
the Sagas as we have them now. 

Fortunately we have in Landndma a means of judging 
whether this was the case or not. If the settlement took place 
on a basis of kindreds, it seems probable that the Saga period 
would not be quite so individualistic as we find it represented 
in the Sagas. If, on the other hand, the settlement itself was 
individualistic, there is no reason to suppose that the ties of 
kindred would have very greatly and rapidly strengthened in 
the Saga period, and again become disintegrated in the Stur- 
lung age. 

Now there can be no doubt that there was no wholesale 
migration of kindreds from Norway to Iceland. In the list, 
in Landnama, of the first settlements, the Norwegian place of 
origin of each settler is frequently mentioned, and it is clear 
that the immigrants who settle down side by side come from the 
most various parts of Norway. Evidently any local grouping 
of kindred must have been shattered in Iceland, even if it had 
existed in Norway. It may be thought, however, that each 
settler was accompanied by his kindred in the ship in which he 
came to Iceland. But that the settler seldom brought more of 
his kindred than his wife and children, if he had any, is clear 
both from the genealogies and from the Sagas dealing with 
this early period. Thus Egilssaga, which bears every mark of 
trustworthiness 1 , goes into some detail as to the persons who 
accompanied Skallagrim and his father to Iceland. They are 
said to have had two vessels, each with a crew of thirty fighting 
men besides women and children. Amongst this crew we find 
all the dependents and neighbours, save one, who had previously 
accompanied Skallagrim on his dangerous errand to the king. 
Two are described as farmers, one as a freedman, one as a man 
who farmed his own land, two as the sons of a sorceress who 
lived close by, and so on 2 . There is never any question of 
kinship between the descendants of these persons and those of 



1 F. Jonsson's ed. Fortale, pp. lix ff. 

* Ch. 25. We also find Grim of Hdlogaland, presumably with his following: he 
is described as a life-long friend of Skallagrim and of his father, but neither he nor 
his descendants are ever said to be related to Skallagrfm's family. 

32 



36 ICELAND 

Skallagrfm. His only kinsman in Iceland is his second cousin 
once removed, Ketill haeng, who however had settled in the 
south, while Skallagrfm settled in the west. 

Vatsdcela Saga, in this point corroborated by Landnama, 
shows us the chief companions of the important settler Ingimund 
on arrival in Iceland : his wife and two young sons, the eldest 
perhaps three or four years old, his wife's brother, and two 
friends and followers of Ingimund, Eyvind sorkvir and Gaut. 

But there is more striking evidence than this that settlers 
were almost completely independent of kindred : 

The great Hdmund heljarskinn, son of King Hjorr, settles in EyjafjorS in 
the North of Iceland; his brother Geirmund settles in the inaccessible 
Western Firths 1 . 

Thorsteinn Solmundarson settles in Kj6s, in the South- West. His uncle 
AuSunn rotin comes to Iceland with Helgi magri, and is given land by him 
in the North 2 . 

Hogni accompanies Hromund and is given land by him on the north 
bank of the Hvita, while his brother, Finn autJgi, comes out independently 
and settles in Hvalfjord a day's journey away 3 . 

Lyting settles in VapnafjorS in the East, and becomes a great chief : his 
brother Thorbjorn settles at Statholtstunga in the West 4 . 

Sigmund Ketilsson settles in Snaefellsnes in the extreme West. His 
father Ketill Thistill is in ThistilsfjorS in the North-East 6 . 

Bjorn austraeni settles in Snaefellsnes. His brother Helgi bj61a had 
settled in Kjalarnes (a little north of the modern Reykjavik) 6 . 

Th(5r61f mostrarskegg takes Th6rsnes, on the south side of BreiOifjorS, 
but his son Hallsteinn goes to settle in ThorskafjortJ in the North-West 
firths 7 . 

Hrdlf digri, son of Eyvind eikikr6k, takes land in the West : his brother 
Th6rS illugi FellsgoSi is a chief in the South-East 8 . 

It must be admitted that the dispersion of kindred could 
hardly be carried to greater lengths. 

The settlement of Iceland lasted from about 871 to 930 A.D. 
Now even taking the case of two brothers coming to Iceland at 

1 Ld. H. ch. 187, 87. (The edition quoted is that of Finnur Jonsson, Copenhagen, 
1900. H. refers to Hauksbok ; St. to Sturlubok; M. to Melabok.) 

2 Ld. H. ch. 19, 198. 
8 Ld. St. 46, 26. 

4 Ld. St. 50, 271. 

8 Ld. St. 75, 26r. 8 Ld. St. 84, 14. 

7 Ld. St. 85, 123. 8 Ld. H. 61, 275. 



ICELAND 37 

the same time, about 880, each with children of ten years old, 
and allowing only 20 years to a generation, it would be at least 
70 years before the descendants of either could have fourth 
cousins in Iceland, by which time surely the uses of a fourth 
cousin, as outlined in Baugatal, would have tended to become 
obsolete. But as the vast majority of settlers came merely with 
their wives and children, or alone, marrying after their arrival, 
and some of them did not arrive in Iceland till 920 or later, 
their grandsons' great-grandsons (for this is what it amounts to) 
would hardly be born until the year 1000 or after. Even if the 
original emigrants had been accustomed in Norway to the 
support of such distant relatives, their descendants in Iceland 
would have grown used to doing without them, and even to 
doing without nearer relatives, in the course of the first century 
in Iceland. It is this kinless condition of the vast majority of 
settlers which leaves a permanent impress on the Icelandic 
constitution. The bond between a chief (gcfoi) and his thingmen 
or dependents is not that of kinship, but of neighbourhood, or 
rather, to speak more exactly, it is the bond between the priest 
and the congregation ; and in the absence of kindreds this bond 
became the central fact in the Icelandic constitution. We have 
already seen how common it was for the gd&i to take over even 
the liability for wergild incurred by one of his thingmen. We 
constantly see gcfoar neglecting the claims even of close kinship: 
it is rare indeed for them to fail to champion their thingmen, 

It seems then to be quite unthinkable that Baugatal was ever 
actually followed in Iceland. The groups of kindred do not 
pay or receive wergild in accordance with it, and the amounts of 
the wergild do not vary in accordance with it. Except for a 
vague reminiscence of its terminology in Njala, there is no 
reference to it in the Sagas, nor is its phraseology current in 
them. It is worth noting that Baugatal only finds a place in 
one of the three collections still extant of Icelandic law 1 . 

Is there then no legal ordering of the wergilds paid in 
Iceland? We believe there is, and that it is contained in the 
section VigsloSi, or "Consequences of Slaying," to which Baugatal 



1 There is what seems to be a reference to it in Staftarholsbok (Grg. II. p. 333). 



38 ICELAND 

is merely an appendix. Certainly we find there a distribution 
of payment for slaying of which Baugatal knows nothing. The 
most important passage for our purpose runs thus : 

"All compensations for slaying suits belong to Jieirs (arftoku 
menn), whether men or women, whosoever institutes the suit or 
is plaintiff (a5ili) 1 ...The mother has a third of the compensation 
for slaying as against the brothers of the slain by the same 
father 2 ." And in the preceding section, after giving the order in 
which relatives are due to become plaintiffs, the paragraph on 
plaintiffs states: "If none of these men exist, then the [next] 
nearest freeborn... relative has the suit... The slaying-suit and 
also the compensations follow the branches of kinship in the same 
way as inheritance, even if there be only one man in one branch 
and several in another 3 ." This evidently refers to a case in 
which there are no nearer relatives than cousins 4 . That the 
claim for compensation does not extend beyond the actual heirs 
is clear from another statement in this paragraph : brothers are 
all plaintiffs together 5 , and divide the compensation equally 
among themselves 6 . 

It must be admitted that these clauses give a much more 
accurate picture of what actually takes place in the Sagas than 
Baugatal can be said to do. 



1 'Whosoever' must mean 'no matter who,' or else this clause must date from a 
period preceding the year 994, when the new law was passed that women might no 
longer be plaintiffs in slaying-suits. The preceding paragraph on plaintiffs (Grag. I a, 
pp. 167-8) gives a statement of the order in which relatives must act as plaintiffs 
which is identical with the list of heirs in the section dealing with inheritance (Grg. 
I a, pp. 218 f.) save that it omits the females. 

2 Gra"g. la, p. 171, " B0tr allar vm vigsacar eigo arftoco menn hvart sem )>eir ero 
karlar efta konor huergi er soc socir efta huergi sem a'Sile er...MoJ>ir a^ri'Siung af 
vigs botom eftir born sin sctrborin vift brpflr samfe'Sra ens vegna. " In Staftarholsbok 
this reads : " as against the father and brothers by same father " (Grg. II. p. 354). 

3 p. 1 68, " Vig soc oc sva b#tr hverfa sva ikne runna sem erf$ )>ott . i . ma^r se or 
avSrom enn fleire or o'Srom knerunne." 

4 Cp. at the end of the list of relatives in the section on inheritance (p. 220), " Nv 
ero fleire menn iafn nanir )>eir er taca eigo. J>a seal iafnt skipta iknerunna alia." 
Outside the first degree all equally related persons inherit equally : thus there might 
be several sets of cousins with equal claims. 

8 pp. 167-8, " ef brtfflr ero fleire samfe'Sra.... rett er at j>eir bvi allir mal til oc f>arf 
engi J>eirra avSrom at selia." 

8 " eigo }>eir allir iofnom hondom J>at er )>eir a taka." 



ICELAND 39 

The order of succession, which these compensations for slaying are here 
stated to follow, runs thus 1 : 

1. Son. 

2. Daughter. 

3. Father. 

4. Brother by same father. 

5. Mother. 

6. Sister by same father. 

7. Half-brother by same mother. 

8. sister 

9. Illegitimate son. 

10. daughter. 

11. half-brother by same father. 

12. sister 

13. brother mother. 

14. sister 

15. Father's father. 

16. Mother's 

17. Son's son. 

1 8. Daughter's son. 

19. Father's mother. 

20. Mother's 

21. Son's daughter. 

22. Daughter's daughter. 

23. Father's brother. 

24. Mother's 

25. Brother's son. 

26. Sister's 

27. Father's sister. 

28. Mother's 

29. Brother's daughter. 

30. Sister's 

31. First cousins on both sides. 

If we now compare the distribution of wergilds in the Sagas 
with these clauses in Vigsl65i, we shall find nothing inconsistent 
or startling. 

Thus the use of the word fofturbatr, compensation for the 
father, occasionally used in the Sagas for the whole wergild 2 , is 
perfectly justified, for a son is his father's heir, and excludes all 

1 Grag. I a, pp. 2i8ff. 

8 Lax. ch. -i^ftf&urbatr paid to the sons of Belli (see above p. 19). Cp. Viga- 
Glumss. ch. 26, wergild paid to Ketill, son of the slain Thorvald krok (p. 23 supra). 



4O ICELAND 

others in the matter of compensation for slaying. The passage 
in Sturlunga, on which we have already commented, where 
Snorri, the brother of the slain Sighvat, rides to the Thing with 
his nephew Tumi in order to secarefi&trfotr for him 1 , is perfectly 
clear if we follow Vi'gsloSi : the son, as heir, excludes the brother. 
So also in the case of sonarbcetr, used for wergild in two pas- 
sages 2 : the compensation falls to the father in the absence 
of children to claim it. 

In Ljdsvetninga Saga, when GuSmund riki gives wergild to the brothers 
of the slain Thorkell hk 3 , it is presumably because he left no children and 
his father is dead, so that his brothers are his heirs. So also in the case of 
Klaeng Klappjdrnsson, brother of the slain Hall, in Sturlunga 4 . It is ex- 
plicitly stated in the case of the VatsfirSings, Th<5rS and Snorri. " Inheritance 
and compensation after them Einarr their (half-)brother had to take, but 
Illugi their (illegitimate) brother was plaintiff in the suit, Einarr being a 
child 5 ." They had no children, their father is dead, and so their half-brother 
Einarr by the same father is heir and receives the wergild ; their next male 
relative on the list is No. II, illegitimate half-brother by same father, which 
is Illugi's position. 

In Reykdala Saga we were surprised to find the mother of Bjarni receiv- 
ing the whole wergild of a hundred of silver 6 , instead of Viga-Glum his 
uncle, but we now see that in the absence of children, of father or brothers, 
the mother had a claim far superior to Vfga-Glum, who only comes 24th on 
the list. 

The curious case in Sturlunga, where the illegitimate son, Orsekja, gets 
the whole wergild for his father Snorri 7 , while the sister's son gets none of it, 
is also explained : Oraekja, the nearest relative, comes 7th on the list, while 
Egill Solmundarson, as sister's son, is 26th. According to Baugatal, Oraekja 
the illegitimate son would have had no greater share in the wergild than the 
brothers-in-law and stepsons who were responsible for Snorri's death. 

The only case which is inconsistent with the clauses in Vigsldfli is that in 
Bjarnar Saga hitdalakappi (see p. 24 f. above), in which both the father and 
brother, as well as the foster-brothers, receive wergild. It is possible that 
what the brother received was really due to him as plaintiff 8 , the father 
being too old to act in that capacity. With regard to one of the foster- 



1 Sturl. I. p. 548. In Sturl. I. p. 16, we find the widow and sons of Hneitir 
getting wergild the widow probably acting on behalf of her sons. 

2 Bj. hit. ch. 20, to Dalk for his son (p. 21 supra). Nj. ch. 12 (p. 23 supra). 

3 Lj6sv. ch. 19 (cp. also Floam. ch. 34). 4 Sturl. I. p. 397. 

8 Sturl. I. p 443. 6 Reyk. ch. 23 (see supra, p. 23). 7 Sturl. i. p. 574. 

8 Grag. II. (Sta1Sarh61sb6k), p. 354, 324, " ...nymseli. par er kona a at taka vigs 

botr efla sa matSr er eigi a at s^kia sakir sinar. )>a a a'Sili vigsakar Jmftiung vigsbota." 



ICELAND 41 

brothers, at least, the taking of wergild was due to an arrangement previously 
made, and it is likely that wergild was frequently extorted by foster-brothers 
entirely without prejudice to the claims of the heirs, as is evident in the 
story of Bjarni. 

The suggestion that the clauses of Vigsl6o1 represent the true 
nature of the Icelandic wergild is thus borne out by all the 
evidence at our disposal ; and they would probably have been 
recognized long ago as valid wergild clauses, but for the baffling 
presence of Baugatal, with which these passages had to be 
forcibly reconciled. This has been ingeniously accomplished. 
Finsen 1 , the greatest authority on old Icelandic law, identifies 
the vtgsbatr, 'compensation for slaying,' in Vi'gsl6o"i, not with 
wergild, but with rtttr, a fine (of 48 aurar) for various offences. 
Now bcetr, vigsbatr, vtgsakarbcetr, compensations for slaying, or 
for slaying-suits, the words used in the above passages in 
VfgsloSi, are also the words used for the whole wergild in the 
Sagas. It is therefore difficult to imagine that in the laws they 
only refer to rtttr> a fine for various minor offences ; which 
Finsen is forced to assume was also paid in slaying-suits in 
addition to the wergild proper. The assumption is made all the 
more difficult by the fact that wergild for Norwegians in Iceland 
is exclusively called bcetr*, or vigsakarbcetr, in the laws ; yet it is 
difficult to believe that Norwegians had no real wergild, only a 
rtttr of 48 aurar. In the Sagas Norwegians have ordinary 
wergilds of a ' hundred ' of silver. 

It is true that one of the recensions of Icelandic laws 
(Sta5arh61sbok) does know of rtttr being paid in slaying-suits, 
but only as a sequel of outlawry : 

1 See rtftr (vtgsakarbatr, vfgsbatr) in his Glossary : Gra"g. III. p. 661 f. 

2 Grig. I b, pp. 197-rS, 249, If an "Eastman" (Norwegian) without kin in the 
country is killed by a person who would inherit his goods, "that man who would 
have the [next] best right to inherit takes inheritance and btztr. If the g<f&i who 
would inherit from him kills the stranger, the other gcf&ar in his district take inherit- 
ance and btetr. If afterwards heirs of the Danish tongue come out, they shall take 
the inheritance and the b<ztr (if there are batr) without interest. All such movable 
property as the heirs do not take [i.e. are not there to take], whether vigsakabatr 
or inheritance, let it be valued like the property of a pauper, and they [those who 
take it over temporarily] shall have the interest on it." Cp. also the use of the word 
vfgsbsetr in Staftarholsbok (Grg. II.), p. 137, 107, "Now if a man has supported 
a boy in his youth, and if that man (the boy) be slain afterwards, then the man shall 
take as much of the vigsbatr as he expended on him, without interest." 



42 ICELAND 

The plaintiff is to charge the slayer with the deed and to declare him 
outlawed, adding : " I claim that his property is all forfeited. I claim for 
myself or for that man who is plaintiff in the suit, rtitr out of his property, 
48 legal aurar. After that I claim for myself half what is left, but half for 
all those men of the quarter who have a right to forfeited property according 
to the laws 1 ." 

But this only establishes that the plaintiff has a kind of praecipuum on 
the outlaw's property : it by no means establishes the identity of rtttr with 
vigsbcetr, which is quite independent of outlawry. 

The only other passage which might seem to suggest that these two 
terms, rtitr and -vtgsbcetr, could be synonymous, occurs in Baugatal, and 
runs as follows : " If a man breaks the [sworn] peace in a case where the 
batr, compensations, of the suit are paid, then the rtttr of every man who had 
paid compensation is increased by half for him [the peace-breaker], moreover 
no one may make a treaty in such suits without leave [from the Courts at 
the Althing] 2 ." 

But this only seems to imply that the peace-breaker has to pay a fine, a 
rtttr and a half, to all who paid compensation, as satisfaction to them for 
breaking the peace which they had paid for. And that this is the right 
interpretation is clearly seen in another passage in Baugatal : " It is old law 
in our land, that if a man is guilty of breaking truce [temporary truce, before 
the wergild is paid] those 12 men who are appointed to [be responsible for] 
the truce shall take r/tir out of his property, 48 aurar 3 ." 

All other references to rtttr refer to fines for blows 4 , wounds 5 , insults 6 , or 
offences against women 7 . 

1 Grag. II. p. 359 ( 332). 

2 Grdg. la, p. 203, " Ef maflr ryfr trygSir j>ar er b^tt er sac botum |>a eycz Jar 
rettr hvers manz halfo. vrS J>ann }>eirra er b0tto. enda seal a J>av mal engi saettaz fyrir 
lof fram." 

3 p. 205, " pat ero forn log a laivSe oro ef maSr vefSr seer vm grifta rof at ^eir 
menn xil. er igriS ero nefndir eigo at taca rett or fe bans vin. aura ens fimtategar." 

This passage goes on significantly for those who hold that Baugatal was in force in 
Iceland: "But that is law in Norway and wherever the Danish tongue runs that if 
a man does not keep truce that man is outlaw from one end of Norway to the other 
and forfeits both his lands and his movable property." Amira (Germania xxxii. 
p. 144) considers the fine Icelandic and the outlawry a mere reference to Norwegian 
custom, but such a reference is surely unparalleled in Icel. law. 

4 Grag. I a, p. 155. 8 n. p. 364. 6 III. p. 434. 

7 Grig. I b, p. 52. There are some references to rtftar fars sok, suits for rtttr, 
but there is nothing to indicate that these are slaying-suits. The term occurs in 
V{gsl6~Si (which however deals with many non-slaying suits) as the sequel to a passage 
we have already quoted : " The mother has a third of the vtgsbatr after her legitimate 
children, as against brothers of the slain by the same father, and so also she has the 
third of rtttr suits about the daughters as against brothers of the same father. If 
another man than the [rightful] plaintiff sues in a r&ta fars suit because he thinks he 
is the [rightful] plaintiff, and the rightful plaintiff pays no heed because he believes 



ICELAND 43 

There is thus no reason for supposing that vigsbcetr means 
rtttr in the laws any more than in the Sagas. It clearly refers 
to the whole wergild, and the whole wergild is therefore awarded 
to the heirs, and not to the kindred at large. In this matter of 
the wergild laws there may be said to be no trace of tJie solidarity 
of tJte kindred. 

The individualistic settlement of Iceland has left other traces 
in the laws. The right of pre-emption of ancestral land by 
kinsmen, known in Norway as odal right, and persisting all over 
Northern Teutonic Europe (except in England) until after the 
Middle Ages, does not appear in the Icelandic laws at all, nor is 
there any trace of it in the Sagas. Except in the case of a man 
wishing to give his entire fortune away 1 , only the heir has any 
hold over an owner of property, being able to prevent the owner 
from impairing his inheritance, or from giving the ' greater tithe ' 
(a tenth of all his possessions) more than once in his life 2 . Again, 
not the kindred, but the hreppr or district, compensated a farmer 
for loss by fire or by disease among his beasts 3 . Only the law 
fixing the responsibility for paupers (infirm or young persons 
without means) shows the influence of the idea of kindred. A 
man was bound to maintain his parents, children, brothers and 
sisters if they were in want and unable to work, even if it 
involved going into debt-thraldom himself to the nearest kins- 
man who had means to support the paupers. He was further 
bound to maintain his more distant relatives, in the absence of any 
nearer kin, up to his fourth cousins, but only if he had a certain 
income increasing in proportion to thedistance of the relationship 4 . 

the other to be rightful plaintiff, then the [real] rightful plaintiff shall have three- 
fourths of the [price of] peace, and that other who sued one-fourth etc." (Grag. I a, 
p. 171.) This means that just as the mother has a third of the slaying-fines for her 
children (i.e. sons or daughters), so she has a third of the damages in suits referring to 
her daughters' honour. 

One text of Nja"lssaga (ed. F. Jonsson, Halle 1908) once uses rtttr with reference 
to wergild (ch. 38), but if, as F. Jonsson thinks (p. 89, note 25), r<!ltr\i&K=manngjoldt 
it is clearly wrong in any case, or else a Norwegianism (cp. N. G. L. Glossar s.v. 
rettr, 3). Fullum rttti might however surely mean nothing more than ' in full measure.' 

1 Grdgas I a, p. 249. a I a, p. 246. 

1 Cp. V. Guftmundsson, Framfsersla og sveitastjorn a fjo'Sveldistlmanum, Eimrei'Sin 
(Copenhagen), iv. (1898), pp. 97-8. 

4 6magabdlkr, Grag. I , p. 3 ff. 



44 ICELAND 

This, one may conjecture, was the old, pre-Icelandic law, 
modified, no doubt, in heathen times, by the permission to 
' expose ' infants, or in case of famine to put the aged and infirm 
to death. But it is surely going too far to say with GuSbrand 
Vigfusson and NorSstrom that this law is of entirely Christian 
(and Icelandic) origin, and that in heathen times there was no 
compulsion to do more for the penniless and infirm than to put 
an end to them. Maurer's view 1 , that the system is old and 
came from Norway, is much more probable ; in fact there are 
distinct traces of an early liability of the kindred in this respect, in 
certain provisions of the Norwegian laws regarding the respon- 
sibility of freedmen for their kinsmen. 

Frostuthing's law, IX. 1 1, runs thus : " So shall the son of a freedman 
take [inheritance], and his son's son, and his son (great-grandson), and 
daughter and sister like son and brother, if there are none of these. Each of 
these shall provide for the other*" Gulathing's law (S. Norway) admits a 
responsibility of the master towards his pauper freedman, and we may 
assume that if the law did not allow him to divest himself of responsibility 
towards this class, by allowing them to die or putting them to death, still 
less would it have permitted him to put kinsmen of his own class to death. 
Yet the paragraph in Gulathing's law is too gruesomely restricted for us to 
attribute it to Christian influence : " If they [the freedman and his family] 
come to extreme want, they are ' grafgangsmen.' A grave shall be dug in the 
churchyard, and they shall be put into it and left to die there. The master 
shall take out the one who lives longest, and feed that one thereafter 3 ." 
Such a provision bears marks of an extreme antiquity, and shows that the 
idea of enforced support of paupers dates from remote heathen times. The 
Icelandic Sagas, too, offer indirect evidence of some law with regard to 
paupers in heathen times. Twice 4 , according to them, it was actually pro- 
posed in the stress of famine to give leave to kill off the old folk and expose 
the infants. In neither case was the proposal carried out, but the fact that 
it was mooted seems to show that the poor-law was older than Christianity, 
though no doubt the influence of Christianity was exerted to preserve it and 
enlarge its scope. As a matter of fact some provision for aged relatives is 



1 Island, pp. 316 ff. 

2 Fr. ix. ii (transl. as in Seebohm, Tribal Custom), "Sv seal sunr leysingia taca 
oc sunarsunr oc }ess sunr...oc sv dottir oc systir sem sunr oc broflir, ef J>eir ero eigi 
til. Oc svd seal hva>t jjeirra hyggia fyrir 6$ru." 

8 Gul. 63, " En ef Jau verSa at J>rotom. }>a ero J>at grafgangs menn. Seal grava 
grof f kirkiugartJe. oc setia )>au )>ar i. oc Idta )>au deyia. take skapdrottenn |>at or er 
lengst livir. oc faeSe J>at srSan." 

4 Reyk. ch. 7 and Fornmanna Sogur, n. p. 212. 



ICELAND 45 

almost an integral part of any tribal society. It exists among the Southern 
Slavs of the Balkan peninsula 1 , and is clearly traceable among the Greeks 
of Homeric times. 

The point to note, however, is that in Iceland there is no 
corporate action, or liability, of the kin : the nearest relative, 
whoever he be, alone bears the brunt of maintaining his pauper 
relative. 

But in Iceland, besides ' inheritance-paupers ' those who 
were supported by persons who would have been their heirs if 
they had had anything to bequeath there are a number of 
classes of ' community-paupers,' whose support was a duty of 
the hreppr (parish), the //--district, or the quarter (one of the 
four territorial divisions of Iceland). This, one would say, was 
an Icelandic development, and that to a certain extent it sup- 
planted the older kinship-liability is evident from the paragraph 
' On the children of outlaws 2 ,' which provides that the children 
and pauper relatives of an outlaw, or of a person banished for 
three years, should be supported by the ' quarter' in which the 
outlaw's, or exile's, possessions had lain. The 'quarter' was 
partly indemnified, it is true, by receiving half the forfeited 
property in the case of an outlaw, but in any community where 
the solidarity of the kindred was a living principle, and where 
all the relatives really suffered for the misdeeds of one, it would 
seem a strange anomaly to cast all responsibility for the 
children of the outlaw and the exile, not on the kin, but on 
the district. 

A candid examination of the sources may thus be fairly said 
to reveal that the much quoted solidarity of the kindred in 
Iceland really rests on Baugatal alone 3 . This is an extremely 

1 "In Montenegro... there was the closest union in war, revenge, funeral rites, 
marriage arrangements, provision for the poor and for those who stand in need of 
special help, as for instance in the case of fires, inundations, and the like." 
Prof. Vinogradoff, "Village Communities," Encycl. Br. vol. 28 (pp. 68 72). See 
also art. " Charity and Charities." 

2 Grdg. i b, p. 13. 

3 The passion of the modern Icelanders for genealogical knowledge has often been 
taken as evidence for an earlier state based on the solidarity of the kindred. If so, 
we must place this earlier state before the settlement of Iceland. But in reality the 
genealogical interest of the Icelanders only illustrates their intense love of historical 
knowledge and local annals, together with a very justifiable pride in their descent. 



46 ICELAND 

insecure foundation 1 , seeing that the laws supply another wergild 
code in which the wergild falls to the heir, and that all the 
evidence in the Sagas 2 corroborates the validity of this other 
wergild code. We have seen that the settlement was indi- 
vidualistic to a high degree, and that the constitution of the 
country was based on the bond between thingman and gofti, and 
not in any sense on federated kindreds. 



1 The two appendices to Baugatal, on truce and peace, have been frankly admitted 
to be Norwegian, and many points in which Baugatal itself shows strong affinities to 
Norwegian law have been pointed out by Maurer ( Verwandtschafts- und Erbrecht* 
p. 38) and by v. Amira, who goes so far as to speak of the "Widerspruch zwischen 
baugatal und sonstigem islandischem Recht" (Germania, xxxn. p. 133). The 
inclusion of the brother in the first baug, noted by v. Amira as a specifically Icelandic 
feature, may well be merely older Norwegian law : cp. the part played by the brother 
in Danish wergilds. 

a The Icelandic Sagas are in the foregoing quoted in the small Reykjavik edition, 
with the exception of Egilssaga and AustfirSinga Sogur (ed. F. Jonsson and J. Jacobsen 
respectively), and of Njalssaga (ed. Copenhagen, 1875). 



CHAPTER II 

NORWAY 

SAVE for the laws, there is very little evidence available for 
our purpose until the fourteenth and fifteenth centuries in Norway. 
The various Lives of the kings of Norway, whether of Norwegian 
or Icelandic authorship, do not deal with the general conditions 
of the people, and there is nothing to correspond to the Icelandic 
Sagas. A certain amount of pre-Icelandic genealogical lore can 
be gleaned, however, from one or two of the Icelandic sources, 
and sometimes the place of origin of Norwegian ancestors is 
mentioned. These insufficient sources give a glimpse of a pro- 
gressive decline of the kindred, but they do not take us back far 
enough to see the beginning of the decline. Thus from the 
Icelandic genealogies it is possible to trace a tendency for earls 
and hersar (local chiefs) to intermarry, and so form an almost 
national Norwegian aristocracy. But as not more than one earl, 
and at most three or four hersar, lived in one district, a certain 
scattering of the kindred must have been a necessary consequence 
of such intermarriages. The following genealogy of persons 
living in the eighth and ninth centuries may serve as an illustra- 
tion. It can be deduced from passages in Landnamabok : 

VeSrar-Grfm 
hersir in Sogn 

| , , 

Ketill veSr Bjorn buna=Vlaug Vermund 1 

hersir of Hringariki 2 hersir in Sogn | hersir 

Yngvild = Ketill flatnef Hrapp = Th6runn = Ulfarr 



Thorbjorn = Hild FroSi Veform 



hersir of Gaular 



(Sondmore) 



Oddny = Orm 



hersir 
(Jamtaland) 



1 Ld. H. ch. 323. 

a For the place names mentioned see the historical map of Norway in vol. I. of 
Magnusson and Morris' translation of the Heimskringla (Saga Library) or the map 
accompanying G. Storm's Snorre Sturlassons Historieskrivning, Copenhagen, 1873. 
(In the former Hringarfki is translated Ringrealm, Sondmore Southmere.) 



4 8 



NORWAY 



Anyone with any experience of travelling in Norway, even 
in the epoch of railways, will readily realize that distance and 
natural barriers must have rendered any effective union of these 
kinsmen quite impossible. 

Another interesting genealogy is found in Egilssaga : 



Ulf 6argi 



Hallbjorn hdlftroll 
in Hrafnista 



Hallbera=Bjalfi 



Vermund (gamli ? 
| hersir ?) 
BerSlu-Kari 



Ketill hasng Bjorg61f lendr maSr 1 Kve diilf = Salbjorg 
in Hrafnista in Torgar 



Thorkell = Hrafnhild = Brynj61f lendr 



jarl of 
Naumudal 



ma$r (hersir) 
in Torgar 



Yngvarr hersir 
in Fir5ir 



Bartf = SigrfS of Most = (2) Th6r61f Skallagrim = Bera 





Th6rir 
hersir 


Thora = Bjorn 
hlaShond 


GySa 

riCgeirr 
dr tnaSr 


Thora 
m. Eirfk 
lendr maftr 
in Vfk 


~ I / 
Annbjorn Asgero = ' 
hersir 



of HoS (Maeri) 

The districts of these kinsmen range from Halogaland in the 
extremest north to the Christiania fjord. When it is recollected 
that the Norseman Ohthere told King Alfred 2 that it took more 
than a month to sail from his home in Hdlogaland to the 
Christiania fjord, even with a favouring wind all the way, it will 
be obvious that these kinsfolk could not often call upon one 
another for help ; and indeed according to the story Th6rolf 
Kveldiilfsson never met his northern kinsmen until he went 
north with his second cousin BarSr, whom he met at the king's 
court 8 . Moreover, if we are to believe Egilssaga (which is 
founded on family tradition and in this particular is likely to be 
correct), even in his own district Kveldulf does not rely upon his 
kindred for support, but on neighbours (possibly dependents) 



1 Lendr matfSr corresponds to hersir. 

2 In Alfred's translation of Orosius, ed. Bosworth, 1859. 
in Sweet's Anglo-Saxon Reader, 7th ed. (1894), p. 20. 



This passage is printed 
8 Eg. vm. 






NORWAY 49 

who are not kinsmen. Thus when Skallagrfm goes to the king 
to ask for compensation for his brother Th6r61f, whom the king 
has slain, he chooses as his companions men from among his house- 
carles and neighbours. We are given a number of particulars 
about these men 1 , who afterwards accompanied Skallagrfm and 
his father to Iceland, and there is never any question of kinship 
between their descendants and those of Skallagrfm. 

That the bond of kindred is considered less binding than 
that of loyalty to a chief to whom one has sworn fealty is clear 
from the behaviour of Th6rolf's kinsmen after the king slays 
him. They are in the king's bodyguard, and neither claim 
wergild nor attempt revenge on those of their fellows who were 
concerned in the slaying. 

From these fragmentary hints we can surmise that the decline 
of the kindred had already begun in Norway by the eighth 
century, though possibly chiefly among the aristocracy. For 
the following periods we must rely almost entirely on the laws. 
These are all compilations of the customs of various districts ; 
and all show signs of having undergone revision and modi- 
fication. 

In the Frostuthing law, in force in the northern parts of 
Norway, the wergild law was only compiled in its present form 
under King Hakon Hakonsson (1217 1263). Fortunately we 
have a few fragments of an earlier law, which we will discuss 
later. King Hakon's law begins with a characteristic preface 2 , 
in which the king deplores the frequent slayings, and declares 
that the most likely means of checking the abuse would be that 
the ordinance of St Olaf should stand, " though it has not been 
heeded hitherto on account of desire of money that he who 
slays an innocent man should forfeit both property and peace 
and be outlaw." " St Olaf's law " of course only signifies ' old 
law,' St Olaf's name being used much as the Anglo-Saxon 
appealed to ' Alfred's law ' or to the ' law of Edward the Confes- 
sor.' The "desire of money" presumably refers to the objections 
felt by the heirs to the total forfeiture of the outlaw's property. 
" Now if the slayer be out of Norway (fled), let his kinsmen pay 

1 Eg. xxv. 

a Frost, vi. i (in Norges Gamle Love, ed. Keyser etc.). 

P. 4 



50 NORWAY 

one-fourth of the compensation, and he shall act who is most 
nearly related [to the slayer] of the paternal kinsmen, and also 
he who is most nearly related on the maternal side, and let them 
so pay to the [two corresponding] kinsmen of the slain. But if 
the slayer escapes in his outlawed state, then let his kinsmen pay 
half- payment according to the first ordinance if his money does 
not suffice*? If after this the king should make peace with the 
outlaw, the latter is to pay the remaining half of the com- 
pensation 2 . 

The reference to the earlier law by which the slayer was 
outlawed and his goods forfeited reminds us of Baugatal, where 
such is assumed to be the case. But the later clause, that the 
slayer's property should go towards wergild, is entirely alien 
from the spirit of Baugatal, and shows a very clear conception 
of the liability of the individual. The fact that only the 
two nearest kinsmen are responsible at all, and for half the 
wergild at the most usually for only a quarter is also sig- 
nificant. 

The clauses which follow, however, are of a somewhat earlier 
date 3 . The wergild is thought of as a fixed sum, varying from 
48 to 1 6 marks 4 according to the standing of the parties con- 
cerned. The following is the division of the largest wergild, 
48 marks. 

The payments (except I. i.) are made throughout to the corresponding 
kinsman on the other side (i.e. father of slayer to father of slain, and 
so on) : 

I. marks aur. ort. 

i. slayer (or his son) pays son of slain ... 5 o o 

ii. father of slayer pays 5 o o 

iii. brother 360 

iv (a), father's brother \ 

iv(). brother's sons j 

v(a). agnatic first cousins ) 

v (). and second cousins, the latter taking $ j 

Total 5 17 7 i 



1 Frost, vi. 4. 

3 Ibid. 5. These paragraphs date from 1260. 

3 Perhaps from c. 1244. Cp. Amira, in Germania, XXXII. pp. 162-3. 

4 6 marks of gold to 2 marks of gold. 
8 Fr. makes this total 17. 7. 2. o. 






NORWAY 5 1 

5. II. Sakaukar or Increasers of Fines : 

marks aur. ort. pen. 

(a) thrall-born son 2100 

() half-brother by same mother ... 2 i o o 

(c) (a) father's father ) 

03) son's son j 2100 

(d) sons of 2 (a) and (b) i. 3. i. o (each?) 2620 

(e) sons of (d\ \ less ... (approx.) 1700 
6. (/) father's half-brother through 

mother, and sons of (b) ... i 3 i o 

Total 3 12 4 o o 

The compiler adds class (/) on his own account, observing that there is 
" great danger to the slayer " if they receive nothing. 

For all this (I and II) the slayer is responsible in the last resort. 
7. III. Mikla nefgildi (to cognates): 
(a) mother's father) 
daughter's son f 
(b} mother's brother] 
sister's son j 

(c) first cousins (sons of father's sister 





or of mothers brother) ... 


i 








o 


(d) 


first cousins (sons of mother's 


sister) 


5 


I 


o 






Total 5 


i 


I 


o 


8. 


IV. i. Litla nefgildi (to more distant cognates) : 


(<*) 


son's daughter's son 


i 


i 





o 


(*) 


daughter's daughter's son ... 


... 


7 


I 


IO 


w 


brother's 


... 


6 





o 


M 


sister's ... 




4 


I 


10 


W 


(?) second cousins 4 (cognatic) 


: sons 








of (?) parents' female first cousins 




(a) as cl. III. (c} 




3 










03) ascl. III. (d) 




i 


I 


IO 6 






Total 3 




7 

^^M^ 


I 

^^^H 


10 

mm^mm 



1 For the inclusion of these agnatic relatives among the ' increasers of fines,' 
cp. Maurer, Venvandschafts- und Erbrecht nach altnord. Rechte, p. 48. 

2 Sons of Sakaukar presumably of (a) and (6). But cp. 6 (_/"). 

8 Fr. makes this total 13. 3. i. o. (There are 20 penn. to the ortug: otherwise the 
reckoning is that given on p. 12, note i, supra.) 

4 Systkinadatrasynir and systradcetrasynir, I do not take these as first cousins 
once removed, as in that case no provision would be made for cognatic second cousins. 

5 These totals are given by Fr., but it requires a good many conjectural emenda- 
tions in the text to attain to them. 

42 



NORWAY 



9. IV. 2. An extraordinary list of persons are here added, the writer 
confessing that they are not in the older Frostuthing's law. He seems to 
think that this omission was by inadvertence. 

The link with the kindred is through the mother only in each case, 
save (e). 



10. (a) sons of father's half-brother and 
grandson of grandfather's half- 
brother 

(V) (a) mother's half-brother, (/3) half- 
sister's son 

(c) sons of (a) and of father's half- 

sister 

(d) sons of mother's half-sister 

(e) thrall-born brother 

Total 

11. V. Frandbatr (kinsmen's compensations) 
(i) Bauggildi (payments to agnates). This 

is the sum of I. 5. i. o, of which 
(a) kinsmen of the fourth degree get f 
(J) fifth degree get \ of 

the remainder 

(c) kinsmen of sixth degree what is left 

Total 

12. (ii) Nefgildi (cognate's payments), 
5. i. o divided as above : 

(a) fourth degree 

(b) fifth degree 

(c} sixth degree 



marks aur. ort. pen. 



i o 
i 10 
o o 



IO 



12 



aur. ort. pen. 

3 o 12 

i o 16$ 

2 ill 



Total 5 

SB 

The total, according to our computation, is rather less than the fixed 
amount, being 47 marks odd instead of 48 l . 

There are some fragments of an earlier wergild law which 
are interesting as offering an indication that the Icelandic 
Baugatal is really an old North Norwegian wergild law. These 
fragments belong to Codex IV. 2 , a single membrane torn down 
the middle, so that we only have half each line. 

1 For a different working out of Norwegian wergilds see C. Holmboe, "Om 
Forholdet imellem Vserdien af Guld og Solv i Norge i Middelalderen," in Samlinger 
til den norske Historie, I. (Christiania, 1833), PP- &9 78 

2 N. G. L. n. pp. 520521. 



NORWAY 53 

As in Baugatal, there are 4 baugar. With regard to the 
fourth, we find the words : Um fim dceillt fe " About money 
divided into fifths," which seems from its position to indicate 
that f of the sum goes to agnates and \ to cognates, as in 
Baugatal. It is however possible that it may refer to a division 
between agnatic first cousins and second cousins as in the later 
Frostuthing's law. 

The fragment has some traces of the careful reductions made 
in Baugatal in the case of the absence of certain relatives. Its 
third heading runs: "About the reduction of the chief baug... 1 ," 
and its sixth heading deals in the same way with the third baug 4 . 
The fragment shows, it is true, the system of truce-buying, 
with which we are only acquainted in the earlier Gulathing's 
law (cp. p. 62, below). But the resemblance to Baugatal 
seems almost textually close in the two headings about a thrall 
and a freedman. The portion of these clauses is equally 
striking in both Baugatal and the fragment, since they are 
entirely unconnected with what precedes and what follows. The 
fragment has : " About the smallest baugar, which a thrall 
shall... 3 /' while Baugatal has: " Now the smallest baugar shall 
be stated, which a thrall shall pay to a thrall 4 ." 

The fragment seems also to know of baugthak, so character- 
istic of Baugatal, for we read (1. 15, p. 521) ..."are 15 aurar and 
eyrir at baug... 5 ,'' which can hardly be completed save by 
" -thak 6 ." 

That the earlier Norwegian law resembled Baugatal in 
assuming the outlawry of the slayer is clear from King Hkon's 
words quoted above (p. 49). 

There is thus some definite evidence that the earlier Frostu- 
thing's wergild law very closely resembled Baugatal. It will 
therefore be worth while to make a comparison between Baugatal 
and the later Frostuthing's law, with the object of noting the 



1 Um houu}> baug at skiser)>3e i annat.... 

2 Urn f>rit!iu bauga skisefSing. 

3 Cod. iv. 1. 16, "Um minztu bauga er )>rsell seal \ " 

4 Grig. I a, p. 202, " Nv seal ina minnzto bavga segia er J>rsell seal fraeli b^ta." 

5 ...ero atian aurar. oc seyrir at baug | (end of line). 

8 For the whole question of this fragment see von Amira, in Gerrnania, xxxir. 
pp. ispff., where the text is skilfully restored. 



54 NORWAY 

modifications of the wergild idea in North Norway. Corroborative 
evidence will later be afforded by the similar tendencies observable 
in the South Norwegian wergild. 

We will adopt the classification of Baugatal, and take the 
largest of Frostuthing's fixed sums 48 marks as a basis of 
comparison. The proportion which Baugatal's maximum of 
15 marks bears to this sum is as 5 : 16. 

I. (i) Slayer (Fr.). Slayer's son, brother, father (B.): 
Fr. 13. 6. o. o. 
B. 3. 6. o. o. (^5- of Fr.'s sum would be 4. 2. i. 2\.} 

(ii) Grandfathers and grandsons (Fr. II. c and III. a): 
Fr. 4. i. o. o. 

B. 3. o. o. o. (^ would be i. 2. o. i8J : i.e., Baugatal is more than 
double its proper proportion as compared with Fr.) 

I. (iii) Uncles and nephews : 

Fr. 4. o. o. o. 
B. 2. 3. o. o. 

Again Baugatal is nearly double its right proportion. 

(iv) First cousins : 
Fr. 2. 5. i. o. 
B. i. 6. o o. (^ would be only o. 6. 2. o.) 

II. (i): 

Fr. This class is apparently not mentioned ; the money (3. 3. o. o) 
being given to great-grandsons, etc. (IV. i. a d\ who are not likely to exist. 
B. i. o. o. o. 

(ii) Second cousins : 
Fr. i. i. 2. 10. 
B. o. 5. i. o. 

(iii) Second cousins once removed and third cousins (fourth degree) : 

Fr. i. 3. o. 12. 

B. o. 5. 2. 5. (fa would only be o. 3. i. 10.) 

(iv) Third cousins once removed and fourth cousins (fifth degree): 
Fr. o. 4. i. 9. 
B. o. 2. i. 5. (fa would be o. i. i. 4.) 

(v) (Fifth cousins and fourth cousins once removed): 
Fr. o. 2. 2. 19. 






NORWAY 5 5 

III. Sakaukar (Increasers of Fines), (Fr. II. excluding ()): 
Fr. II. 10 3 i o 

Fr. IV (2). 5110 

15 4 2 o 

B. 1405. (/ 5 would be 4. 6. 2. 17$.) 

We see then that Baugatal taxes the slayer himself not at 
all, and his brother and father somewhat less than Frostuthing's 
law. On the other hand the liability of grandfathers and 
grandsons, of uncles and nephews, and of first cousins is about 
twice as heavy, in proportion, as in Fr. In the third degree 
of relationship Baugatal apportions the liability to cousins, while 
Fr. gives it to great grandsons, etc. an unlikely class. In the 
case of second, third and fourth cousins, again, Baugatal imposes 
nearly twice as heavy a fine, in proportion to the total amount. 
On the other hand, Baugatal's sakaukar class (relations by 
marriage, etc.) hardly pay more than a quarter of their due 
proportion according to Fr. In Baugatal, then, the responsibility 
falls nearly twice as heavily on all the more distant kinsmen, 
while the slayer's father and brother escape comparatively 
easily. That is to say that the conception of the corporate 
liability of kindred has been greatly weakened in Norway 
since the date of Baugatal's composition. There are some 
other features of the later wergild law which point to the 
same conclusion. Thus Baugatal (and the earlier fragment of 
Frostuthing's law) reduce the wergild in the absence of any set 
of kinsmen. The later law awards a fixed sum, and also ap- 
portions large sums to connections who are not likely to exist 
(Cl. IV. 2), which is significant in view of the fact that the slain 
man's two nearest kinsmen evidently keep the sums for which 
there is no proper recipient. The matter is entirely in the hands 
of these two kinsmen, but there is no legal machinery provided 
to force them to distribute the sum equitably. We may therefore 
safely assume that except in the case of kinsmen who were near 
neighbours, or very active in the suit, or very powerful, the 
distribution of wergild would frequently not take place at all, 
and the final result would be that the money would tend to 
remain in the hands of the two nearest kinsmen, i.e. the heirs, as 
in Iceland. 



56 NORWAY 

We will now consider the wergilds in South Norway. The 
earlier Gulathing law, in force in the southern parts of Norway, 
and compiled in its present form about 1200, contains three 
complete sets of wergild regulations. The first (Gul. 218 seq.) 
is possibly the earliest. As some points in this first set of 
regulations have hardly received the attention they deserve, 
I make no apology for treating it somewhat fully. As in 
Baugatal, and in the early fragment of the Frostuthing law, the 
wergild is divided into two parts, the bang, and the upndm for 
the more distant kinsmen. 

Gul. 218 seq. I. Baug : Marks 
(i) HofuSbaug (chief baug) paid by slayer to son, or son 

and father of the slain 10 

(ii) Brother's baug, paid by slayer's brother 5 

(iii) BrczSrungs baug (first cousin, agnate) ... ... 4 

(iv) Women's gifts : mother, daughter, sister, wife of slain 

each receive 2 aurar (paid by slayer?) 1 I 

Total 20 
The slayer is in the last resort responsible for all these sums. 

II. Upndm or Saker : Aurar 

(i) Slayer pays to the slain man's 

(a) father's brother, brother's son, mother's father, 

daughter's son, each 8 aurar (4 persons) 2 ... 32 

(b) braftrung (agnatic first cousin), mother's brother, 

brother's daughter's son, sister's son, father's 

sister's son 3 (5 persons), 6 aurar each 30 

(r) mother's sister's son, braftrung's child, father's brce- 
tirung\ mother's mother's brother, sister's daugh- 
ter's son (5 persons), each 4 aurar 20 

Total 82 

It is to be noted that the braftrung (agnatic first cousin) participates 
twice, in I. iii. and II. b. 

1 111, " Now if all the women are missing, then the slayer shall take that mark, 
and give it to the son of the dead." 

2 237 points out that by father's brother is meant all the father's brothers, so 
1 person ' must be taken to mean ' person or group of persons.' 

8 systling. 

4 Elsewhere class (C) is counted as 4 persons, 137. 



NORWAY 57 

II. (ii). Cross-payments or ' kinsmen's compensations ' (fraendbtetr). The 
payments are made by classes 1 1. (a), (b\ and (c) to the relatives of the slain. 
A careful study of the text reveals that not only do each of the relatives in 
class (a) for example, pay to each of the relatives in the corresponding class 
on the slain man's side, but also to each of the relatives in the other classes. 
With regard to classes (a) and (6) this is indicated, but not made absolutely 
clear, by the wording 1 , but in treating of the liabilities of class (c} the 
language used is unequivocal 2 , and as it is impossible that class (c) should 
alone be thus liable, there is no alternative but to suppose that each relative 
in each class was actually bound to pay each relative in every one of the 
three classes. 

225. Each person in cl. (a) pays : aur. ort. pen. 

to the son of the slain 4 aur. 3 (X4) ...... 1600 

brother of the slain 8 ort. (x4) ... 10 2 o 

to each person in cl. (a) 5 ort. 3 pen. (xi6) 28 o 8 

(6) i aur. 4 p. (xao)... 23 o 3^ 

(c} 2 ort. 4 pen. 4 ( x i6) 5 12 2 4 



Total 6 90 



1 225. ...Now the father's brother of the slayer [cl. a] must pay the mother's 
brother [in cl. b] of the slain... So shall be paid the sister's son [cl. 6] similarly, and 
the bras'Srung and the brother's daughter's son and the systling [all in cl. &]. Now 
the father's brother shall pay... to the mother's sister's son [cl. c] of the dead, and 
so shall each of them in that upnam. So shall they pay the sister's daughter's 
son, and the brseflrung's child, and the mother's mother's brother [all cl. c} of 
the dead. 

226. ...Now the brseftrung of the slayer [cl. ] is to pay to the brse'Srung of the 
dead [cl. b\. So [shall be paid] the brother's daughter's son of the dead likewise, and 
the mother's brother and sister's son, and the systling of the dead. Now the braeftrung 
[cl. t>] of the slayer shall pay the mother's sister's son [cl. c] of the dead. ..So shall 
each of them in that upnam. So shall they pay the brse'Smng's child, and his father's 
braining, and his mother's mother's brother, and sister's daughter's son [all in cl. c]. 

2 227. ...But to the father's brother of the dead [the mother's sister's son of the 
slayer must pay] three pennings less than an eyrir. The same to the brother's son of 
the dead and the mother's father and daughter's son. The same payment is due from 
the mother's sister's son of the slayer and the sister's daughter's son and the brse'Smng's 
child, and the mother's mother's brother of the slayer. Of these each shall pay 18 
pennings to the mother's brother of the slain. The same shall be paid to the sister's son 
of the dead and similarly each of them [shall pay~\ the braftrung of the dead. 

The earliest fragment C says : 1 2 pennings shall each of them pay in the loivest 
upnam to each of those in the highest upnam (p. 113). 

3 I.e. half what he would receive from the slayer. Cp. Maurer, op. cit. p. 54. 

4 233 has i aur. 5 pen. 

5 In this passage cl. (c) is counted as 4 persons. 

8 In these passages 10 pennings are reckoned to the ortug. 



58 NORWAY 

226. Each person in cl. (b} pays : aur. 6'rt. pen. 

to the son of the slain 3 aur. ( x 5) 15 o o 

brother of the slain 5 ort. 3 pen. (x 5) 8 2 5 

to each person in cl. (a) i aur. 4$ pen. (x2o) 23 o 3^ 

(*) 2 ort. 3 pen. 1 (x25) 19 o 5 

(<:) i ort. 8| pen. ( x 25)2 15 i 6| 



Total 8 1 



227. Each person in cl. (<:) pays : aur. ort. pen. 

to the son of the slain 2 aur. (X4) 800 

brother of the slain 4 ort. ( x 4) ... 5 i o 

to each person in cl. (a) 2 ort. 7 pen. (x 16) 14 i 2 

(8) 18 pen. (X2o) ... 12 o o 

.(0 12 pen. (xi6) 3 ... J> i 2 

Total 46 o 4 



228. The brother of slayer pays : aur. ort. pen. 

to each person in cl. (a) 5^ aur. (X4) ... 21 i o 

(*) 4 aur. (xs) 20 o o 

(c) 2 aur. ( x 4) 10 2 o 

Total 52 oo 

The total is something over 64 marks, of which the slayer and his brother 
pay more than half 32^ marks (women's gifts included). 

The slayer is not usually outlawed as a consequence of his act : 218 
observes that if the slayer is outlawed, the chief baug (I. (i)) is not paid. If 
however the slayer is dead, his heir is liable for it. 

That there is no provision for father's father nor for son's son is to be 
explained on the principle that money received in other degrees in the direct 
agnatic line is considered to suffice. But a stranger omission is that of the 
father's mother's family, seeing that the mother's mother's brother gets 
wergild. 

Cognates take practically one-third less than agnates. 

But now we come to a series of paragraphs which tacitly conflict with the 
statements in the preceding paragraphs. Thus 229 seems to mean that the 
slayer is to pay the fines devolving on his father's brother and his brother's 
son*. 230 seems to conflict with the preceding clause as well as with 



1 234 says i ort. 7 pen. 

2 Here cl. (c) is said to contain 5 persons. 

8 Here cl. (c) is again counted as 4 persons. 

4 ' ' Nu seal vigande hava med ser i sokum faflur bro~5or oc broftor sun oc hallda 
upp sokum firi J>a, )>o at >eir vaeri alldrigi menn i heimi en sialver )>eir firi sic ef J>eir 
ero til." 



NORWAY 59 

earlier clauses : " The brother's son shall be associated with the father's 
brother with regard to the fine. They both take one (fine) and so also pay 
(one fine), while the father's brother lives, but one third less when the father's 
brother is dead 1 ." We have already seen above (p. 56, and note 2 same 
page) that they each take one whole share. 

Then follows a clause giving to childless female relatives under forty years 
of age the shares which their sons would receive if they existed, and then we 
have three clauses (232 234) which at first sight merely seem to reiterate 
what was laid down in 226 ff. about cross-payments, but on examination 
prove to run counter to them. Thus 232 states that the father's brother of 
the slayer pays a sum to the father's brother of the slain, and the brother's 
son to the brother's son, and so on : i.e., the payments of class (a) to the 
corresponding class (a) on the side of the slain are calculated as only 
between the corresponding kinsmen, not each to each as in 225 ff. Clauses 
233 234 provide for payments from one upndm into another, but there is 
no payment from (c) to (), nor to (c) from (a) and (), nor to (&) from (a). 
There are also one or two differences between these clauses and the pre- 
ceding ones with regard to the sum paid. These may or may not be scribal 
errors, as suggested by the editors 2 . 

In view of this divergence we must suppose either (i) that these clauses 
are added by a later editor as glosses on the preceding statement in which 
case it is clear that the later editor failed to grasp the preceding clauses, 
besides allowing his own statements in 230, about uncles and nephews, to 
conflict not only with the preceding clauses, but also with his own explanation 
in 231 ; or (2) that they are a fragment, or rather two fragments ( 230 
231 and 232 235) of another set of wergild regulations ; and this seems the 
more probable suggestion 3 . 

III. We now give the substance of 235, which apportions wergild to 
twenty-six persons, beginning with the agnatic kinsmen nearest to class II. a. 4 
Agnates in this list alternate with cognates, and the former apparently take 
one-third more than equally related cognates. Each person in the list takes 
one-third less than the preceding one. The sum to be taken by each person 
is given both in money and in ells. The ratio between these, in the first 
4 cases, works out very accurately to 3 pennings to the ell (with negligible 
fractions such as Jj, fa and so on); till we get to the fourth agnate on 



1 " BroiJor sunr seal fylgia faftur brceSr til sakar. taka bafter eina. oc sva bceta 
meftan faiSur broker livir. en sii5an jjrrSiungi minna er faftur broker fellr i fra." 

2 N. G. L. i. p. 78, note 3. 

8 So Keyser, Efterladte Skr. \. p. 302, note i ; see however v. Amira, op. cit. 
p. 130. 

4 " sa maiSr er nestr er at frendseme i karlsvift fra hinu cefsta upname." For 
speculations as to these kinsmen see Maurer, op. cit. p. 61. Note also the talubtt 
of the fragment of Cod. IV. 1. 24 (cp. v. Amira, op. cit. p. 151). 



60 NORWAY 

the list. There we find the ratio vary to about 3 pennings 1 to the 
ell. The next degree receive little more than half the preceding sum, 
instead of two-thirds 2 . Then, startlingly enough, the ratio between 
pennings and ells jumps to 6 : I, and finally to 7^ : i. The explanation 
of this can only be that the latter part of the money payments was calculated 
in a time when the penning had decreased in weight till it was only half its 
original value i.e., in the .twelfth century. The calculation was probably 
made by the scribe who committed the law to writing, and who amused 
himself by subtracting thirds until only fractions of a penning remained. 
That a gross error of this sort could then pass unnoticed shows clearly that 
these payments were entirely obsolete 3 . This is perhaps also indicated by 
the fact that the payer of these sums is never mentioned. 

IV. Now come the Sakaukar, or Increasers of Fines. We have no 
means of knowing whether this passage belongs to the first group of clauses, 
which we will call A I ; or to the second, A 2 ; or to both. 

236. (i) The slayer pays to : aur. 

(a) thrall-born brother, thrall-born son, half-brother by 

same mother, each 12 aur. 36 

237. (V) father's thrall-born brother, father's half-brother 

by same mother, each 6 aur. 12 

(c} mother's thrall-born brother and mother's half-brother 

by same mother, each 3 aur. 6 

(2) The slayer's brother pays one-third less to each : 

to (a) 8 aur. each 24 

(b) 4 aur. each 8 

(c) 2 aur. each 4 

(3) Slayer's father's brother pays one-third less again, 

i.e., a total of 24 aur. 24 

Total 114 

Then follows a paragraph entitled misvigi, dealing with offences that 
aggravate the crime of manslaughter. Then, 239, we get the fines due to 
connections by marriage and others, payable by the slayer. 



1 18$ pen = 5 ells : i.e. the ratio is as 3}! : i. 

3 9$ ells instead of nj, the ratio of pennings to the ell has here decreased 
to att : i. 

3 The omission of the i4th agnate in the list is probably merely due to inadver- 
ence : cp. Maurer, op. cit. p. 28. 



NORWAY 6 1 

aur. 

V. son-in-law (or father-in-law) 12 

brother-in-law 6 

18 

stepfather 12 

stepson 12 

oath-brother 12 

foster-brother 12 

mother's mother's father (if of high birth 1 ) 12 

Total 78 

All this is to be paid by the slayer. 

The most noteworthy point about these payments in IV. and 
V. is the increasingly heavy burden on the slayer himself. If all 
the persons in the two groups existed, an unlikely supposition, 
however, the slayer would be mulcted of 132 aurar, in addition 
to his heavy baug and other payments. The greater part of 
these persons do not receive wergild in Baugatal, which we have 
seen reason to believe the earliest Norwegian wergild law extant, 
and this circumstance, combined with the fact that these sums 
are all payable by the slayer, leads us to imagine that these 
additional burdens were added at a late date, when the idea of 
the slayer's primary responsibility was becoming more prominent 
than it ever could have been while the solidarity of the kindreds 
remained unshaken. 

We now pass to the second complete set of wergild pay- 
ments, in Gulathing's law. It begins with paragraph 243 ; and 
we will call it B. It is called a hauld's wergild : hauld seems to 
be used in the same sense as ddalborinn maftr in 218; and to 
refer to a landed aristocracy. 

Its main features are as follows : 

J. Baug. marks 

(i) hofi&baug paid by slayer to son of slain 6 

(ii) brfi&urbaug paid by brother to brother of slain ... 4 
(iii) brceftrung's baug paid by braeSrung to braeSrung 2 ... T.\ 
(iv) skdgarkaup, to redeem slayer from outlawry ... 3 

Total 15 J 



1 If a hbldr. 

3 249 however seems to declare that each baug-payer shall pay only \ of what he 
would receive, which conflicts with the above. 



62 NORWAY 

II. Tryggva-kaup or Truce-Buying : aur. 1 ort. pen. 
Slayer pays to (ii) and (iii) each i aur. ...212 
Slayer's brother pays to (i) and (iii) each i aur. 212 

bnetSrung pays to (i) and (ii) each i aur. 212 

Total 7 o 6 
"if all the kinsmen join in the peace at the same time." 

III. Gifts: aur. ort. pen. 
(a) Slayer, his mother, daughter, wife, each pay 

to wife, daughter, mother of slain one 

gift of i aur. (xi2) 14 i 2 

() Slayer's sister pays gift to sister, wife, 

daughter, mother of slain (2 gifts) ... 2 i 2 
(c) Slayer, his mother, daughter, wife, each pay 

gift to sister of slain (2 gifts) ... 2 i 2 

Marks 2^06 



Here a total is given, as if this were the whole wergild. This total is declared 
to be Mks 20. 2. i. 2, whereas the actual total of the sums given is Mks 18. 6. i. 2. 
Seebohm suggests that the difference may be due to the fact that 20 of the 
earlier Roman or Merovingian marks were equal to 18 of the later period. 
It would seem that these regulations cannot have been in full force at the 
time when the laws were committed to writing, or we should hardly have 
found an inconsistency about so large a sum. 

IV. The next clause is headed: "About saker" aur. 

(i) (a) father's brother, brother's son, half-brother by same 
mother, thrall-born son, daughter's son, mother's 
father (6 persons) take 12 aur. each 72 

(V) mother's brother, sister's son, thrall-born brother, each 

9 aur 27 

(c) first cousins 6 aur. (X3) 2 ... 18 

(d) father's thrall-born brother (and son of thrall-born 

daughter if she married a freeman) 8 

Total 125 

249. All these receive from the slayer | (of the above sums or in 
addition to them?) and from slayer's brother. 



1 The eyrir is here reckoned as equal to 11 ells: the previous regulations dealt 
with a lo-ell eyrir. 

y Systkinna synir usually only means father's sister's sons and mother's brother's 
sons. As however no provision is made elsewhere for mother's sister's sons we assume 
them to be included here. 



NORWAY 63 

250 252. (ii) There are cross-payments between classes a, b, and c 
above, which would appear to amount to 31 aur. I ort. 5 pen., but may be 
more if they are from each to each in each class. 

There is no mention of any outer circle of kindred, so that the total 
wergild would be something over 38 marks. 

The ' truce-buying,' of which we saw traces in the early 
Frostuthing fragment, seems here to aim at inducing all the 
nearer kindred to join in the peace at the same time. 

The striking feature of the above regulations is the entire 
absence of any kindred more distant than first cousins. But 
Gulathing's law contains two regulations in which bang payments 
only are given. In 179 we have the declaration : " But if both 
the hand and the foot be cut off the same man, he is worse 
living than dead, and shall be paid for as if he were dead. 
1 80. Now are stated the payments in Gula : a Jtauld shall be 
paid for with 18 marks of legal tender 1 ." Eighteen marks is 
a baug payment only (see above, pp. 50, 56). Seebohm 2 suggests 
that the outer payments were not made because the man was 
wounded only, but this theory is directly contradicted by the 
preceding clause 3 . It seems we must allow that Gulathing's law 
contemplates a wergild of baug only, for we find again ( i/o): 
" If a man slays the drmtfSr (official) of the King, he shall pay 
for him with 15 marks... at that rate of money as is current in 
Gula, aurar of 6 ells each 4 ." If, as seems likely, these sums 
cover baug payments only, these two enactments would indicate 
that the claims of a wider kindred were not always considered. 

The confusion of the above sets of regulations is so marked 
that we are not surprised to find a new law 5 , added under the 
name of Bjarni MarSarson, who lived about 1223. He takes 
fixed sums, the first is 6 marks of gold, i.e. 48 marks of silver, 
and shows how it is to be divided. He makes no clear distinction 



1 " Nu ero giolld told i Gula. giallda haulld XVIII. morcom logeyris." 

8 Tribal Custom in A.S. Law, p. 1 51. 

8 Cp. Grg. I a, 101. 

* "Nu vigr maflr armann konongs. \>a. seal giallda hann. xv. morcom. ..at )>vi 
aura lage seal giallda hann aptr sem mcelt er i Gula. vi alna eyris." 

8 Gul. 316 319. These clauses, though actually earlier than the Frostuthing 
wergild, are supposed to have been intended for the whole country (cp. Maurer, op. cit. 
p. 65). 



64 NORWAY 

between baug and outer payments 1 , and he assumes that the son 
of the dead man receives the whole sum (from the slayer ?) and 
distributes it himself to his kinsmen 2 . There is thus no longer 
any need for both sets of kinsmen to meet. It is to be observed 
that the son of the slain takes any share of the sum for which 
the proper recipient does not exist. A glance at the list of 
recipients 3 will show that the difference between the sum actually 
received, and the total of the payments to kinsmen, might be 
very large, so that the slain man's nearest relative would benefit 
largely. Moreover no means are suggested by which the 
recipient of the whole sum can be forced to distribute it among 
his relatives, so that more distant or less powerful relatives were 
very unlikely to obtain their share. As in the case of the later 
Frostuthing's law (see above, p. 55) we must surmise that these 



1 Maurer, op. cit. p. 66, observes that in these regulations "die Verwandtschaft 
zeigt sich somit ohne alle Gliederung in ihre Atome aufgelost." 

2 Each kinsman of the slayer pays the same amount as the corresponding kinsman 
of the slain receives. 

3 I. (i) Son. 

(ii) Brother. 

(iii a) Father's brother and his sons (here follows in each case a complicated 
and not entirely consistent set of regulations providing for him if 
childless, for his illegitimate son, for possible daughter's sons, for 
his sons if he is dead), 
(iv) Father of slain. 
(v a) Half-brother by same mother, 
(v 3) Father's half-brother, 
(via) Stepfather and stepson. 
(vi) Brothers-in-law. 
II. (a) Mother's father, and daughter's son. 

(b) Mother's brother, and sister's son. 

(c) Bref&rung's child ; father's brc&rungr. 

(d) Father's sister's sons. 

(e) Mother's brother's sons. 
(/) Sons of sisters. 

(g) Brother's daughter's son. 

(h) Second cousins (agnatic). 

(*) Sons of female agnatic first cousins. 

(/) ,, ,, cognatic first cousins. 

(, /) 4th agnates and 3rd cognates. 
(m, ) sth ,, 4th 
(o,j>) 6th .sth ,, 

(ff) 6th cognates. 



NORWAY 65 

regulations were chiefly of use in order to establish what kinsmen 
had a right to wergild, if they chose, or were able, to claim it. 
Only thus, too, can we explain the ignorance and confused 
statements of the law-books. We must therefore beware of 
regarding these wergild-laws as conclusive evidence for the 
solidarity of the kindred in the I3th century. 

King Magnus the Law-Mender (1263 1280) abolished all 
kinsmen's compensations both on the side of slayer and slain 1 . 
Only the nearest heir was to receive wergild. This new law was 
promulgated in 1271. In other countries, as we shall see later, 
constant and emphatic repealing of the old wergild laws was of 
little or no avail against deep-rooted custom. In Norway the 
participation of kindred must already have been rather half- 
hearted, for this one declaration seems to have sufficed to put an 
end to the custom, in so far as it may have still persisted up to 
that date. The entire absence of all mention of ' kinsmen ' in 
Norwegian deeds of reconciliation, records of suits, etc. is very 
remarkable. In Sweden and Denmark the ' kinsmen ' are in- 
cluded long after their legal right to wergild has been abolished, 
but the Norwegian legal documents show the heir or heirs briefly 
acknowledging that he has received so and so much from the 
slayer 2 . A deed of 1348 shows the slayer alone paying wergild 
to the brother of the slain, and though the nature of the 
reconciliation is fully stated there is no word of other kinsmen 3 . 
Sometimes a husband and wife give the receipt 4 or pay the 
money 5 , sometimes a brother and sister 6 , or the widow and her 
children 7 , but more distant kinsmen are never mentioned. How 



1 Nyere Landslov, N. G. L. iv. 12 (in 1271). 

2 Dipl.Norw. in. No. 258 (1348), I. No. 523(1390), ix. No. 188 (1397), i.Nos. 608 
(1406), 633 (1412), No. 637 (1413), xv. No. 75 (1449), xn. No. 213 (1447), xiv. No. 
540 (1526), xv. No. 721 (1567). 

3 See Appendix II, No. i andZ>. N. i.Nos. 236(1336), 51 3(1 389), xi. No. 249(1482). 

4 D. N. I. No. 413 (1371). Helgi and his wife take wergild from Solvi for the 
slaying of Amund. However, they hand over one quarter of the sum to another person ; 
relationships not mentioned. 

8 D, N. I. No. 933 (1482). Thorkel and his wife pledge a farm to a widow and her 
children, Thorkel having caused the death of the husband. 

8 D. N, xiv. No. 794 (1542). Per Ulfsson and his sister Ingirid announce their 
reconciliation with Niels Engelbrektsson, who accidentally killed their father. 

7 D. N. i. No. 933 (1482), xv. No. 721 (1567). 

P. c 



66 NORWAY 

completely the tribal idea of wergild has died out is seen in the 
fact that women receive the whole wergild 1 , and in one case 
a woman pays the vvergild due for a slaying committed by her 
late husband 2 . 

The later cases given in Norwegian Court Records of the 
sixteenth century, now published in the Norske Herredags 
Dombtfger, show the same limitation of wergild to the heirs. An 
interesting case is given in Appendix II 3 . 

More striking still is the fact that in the letters of the kings 
of Denmark relating to slayings in Norway, the expression 
'heirs 4 ' is frequently used where in both the other Scandinavian 
kingdoms, with which the king was better acquainted, the words 
' kinsmen and friends ' is invariably employed. Only quite 
occasionally, and then, it would seem, by inadvertence, does the 
Danish king use the latter expression when referring to a 
Norwegian slaying-suit. 

To sum up. There seems to have been a progressive decline 
of tribal solidarity in Norway. The earliest stages of this 
decline we are not able to trace, but we may suspect that it was 
already considerably advanced before the settlement of Iceland, 
at any rate among the aristocracy. As regards wergild, all 
responsibility of the kin in this matter is entirely at an end 



1 D. N. xv. No. 98 (1472). Gudrid Throndsdatter admits that she has received 
all that was due to her in fines for Thore Slampe. XV. No. 713 (1564). Ragnhild 
Bjornsdatter declares that she has received the wergild for her son Gunleik, 1 1 marks 
of gold and 44 florins, besides a ' gift in friendship ' of a spoon and a cow. This is a 
very large wergild. Cp. also IX. No. 183 (1390) and Norske Rigsregistranter, vnr. 
p. 296. 

2 D. N. xv. No. 25 (1367). Sigrid paid land (which she had inherited from her 
brother), for the slaying of Baard Valthjofsson, whom her first husband had acci- 
dentally slain. 

8 No. 2. Cp. also N. H. D. ill. p. 33: two men and their co-heirs complain that 
the slayer does not keep to his agreement (1585) ; v. p. 321 f. (20 Aug. 1599) : Peter 
Kieldsen is to pay ' fines to the dead man's heirs ' (bj<der til den d^dis arffuinger) ; 
and VI. p. 34 f. (13 July 1604) : Knud and Olaf go bail for their brother, who 
has slain a man, and declare that they have paid the wergild. Cp. also Norske Rigs- 
regisiranter, in. p. 605 (1600) : the slayer is to pay 200 florins to the slain man's heirs. 

4 Norske Rigsrtgistranter, III. p. 689 90 (1586) ; IV. p. 42 (1604), p. 69. Dipl. 
Norw., xi. No. 51 (1361), No. 58 (1369); xn. No. 211 (1446), No. 278 (1511), 
No. 599 (1541) ; xn. No. 21, roi, 167 ; xvi. No. 442 ; xv. No. 92, 147. Kancelliets 
Brevbjger (Copenhagen), 11. p. 284. 



NORWAY 67 

before the close of the thirteenth century, and possibly before 
that time. 

Other signs of tribal custom also disappear early. The oath 
of twelve kinsmen does not appear even in the earliest laws, 
though in some cases the presence of one or two kinsmen of an 
oath-taker is required. The principle that there could be no 
feud and no wergild within the kindred, is already in the earliest 
laws restricted to the immediate family parents and children 1 . 

It is only with regard to tenure of land that we can trace 
some of the ancient tribal principles. Odal land land which 
had been inherited from grandfather's grandfather, could not be 
alienated unless first offered to the odal-sharers, i.e. those other 
kinsmen who had an inherited claim to it. In default of nearer 
kinsmen, these might be as distant as second cousins 2 . But 
before building up any theory involving solidarity of kindred on 
this institution it will be well to remember (i) that though 
originating in tribal ideas, its actual tribal significance is small, 
(2) that a similar institution existed all over the Teutonic part of 
the Continent until long after the Middle Ages 3 , and (3) in 
Norway the institution was consciously strengthened by Magnus 
the Law-Mender, no doubt with a view to supporting the 
shattered aristocracy of Norway 4 . 

As in Iceland, it is the nearest heir who is liable for the 
support of pauper kinsmen, the burden being only shared when 
there are several heirs 5 . 

We may conclude our review of the evidence by asserting 
that in spite of the many survivals in the laws of a tribal mode 
of thinking, so ably pointed out by Seebohm, all organization 
of society based on the solidarity of the kindred was already on 
the wane in Norway in Viking times, and had completely broken 
down by the end of the thirteenth century. 



1 Gul. 164. Frost, iv. 31. 

8 Cp. Boden, Das norw. Stammgiiterrecht, Zs. der Sav. Stift. Bd. 11 (1901), 
pp. 109154. 

3 Retraklrtcht, Vorkaufsrecht, etc. Cp. the Fr. retrait lignager. 

* Cp. O. Btichner, Anhang to Bering's Vererbung in Schl, ffolstein. 

8 Gul. 115, 118. Cp. v. Amira, Nordgerm. Obligationenrecht, Bd. II. pp. 907 ff. 

52 



CHAPTER III 

SWEDEN 

To turn to the Swedish wergild laws after studying those 
of Norway is like emerging from a thicket into the open country. 
The latter have lost sight of every main principle in the multi- 
plicity of detail, and darken counsel by heaping together all the 
wergild clauses or fragments of wergild regulations known to the 
compilers, who seem strangely regardless of inconsistencies. 
The earlier Swedish provincial laws show local divergence, it is 
true, but no inconsistency, and such obscurity as there is about 
them arises from the extreme conciseness with which they state 
the main principle of wergild distribution. 

The contrast between the Norwegian and the Swedish wergild 
clauses is the more remarkable as some of the latter are first 
committed to writing considerably later than the Norwegian. 
This is the case with the Helsinge law, which was probably first 
written between 1310 and 1347. It was current not only in the 
modern province of Helsingeland but over the whole of Northern 
Sweden, extending its sphere as these regions were gradually 
settled. 

Its wergild chapter runs as follows 1 : 

" If a man kills another, and is legally proved guilty of (the) slaying : 
The plaintiff has the choice whether he will rather take vengeance or receive 
compensation. If he will receive compensation, he shall have 7 marks 
reckoned by weight. The king (shall have) 4 marks wergild. The aider 
and abettor shall each of them pay 15 marks 2 or deny (their complicity) with 
an oath of 14 men. Let the father or mother take for their son 16 ore : the 
brother 8 ore, the wife 12 ore. Let whoever is (next) nearest in kinship take 
4 ore. A first cousin 3 2 ore. A second cousin i ore. A third cousin half 



1 Helsingelagen, Manhselises B. XXXVlll. in vol. vi. of Sveriges Gamla Lagar, eel. 
Collin, Schlyter, etc. (182777). 

2 Possibly reckoned in minted money, not by weight. 

3 Systlingi should strictly be first cousins on the mother's side, but must here be 
taken to mean first cousins in general. Cp. Gloss, to vol. vi., s.v. 



SWEDEN 69 

an ore 1 . Let each pay (compensation) in like manner as he receives it, up 
to the fourth man (third cousin). Once (only) shall kindred compensation 
(cettce boot) be paid (on behalf of the same kinsman). Afterwards let each 
be himself responsible for his deeds." 

Outside the first degree, each more distant degree of the 
kindred receives or pays half as much as the degree next nearest 
to the slayer or slain a principle which runs all through Swedish 
and Danish wergild laws. Presumably the slayer himself pays the 
7 marks received by the plaintiff. But there are other noticeable 
points in the regulations, (i) The plaintiff still has the actual 
right of vengeance acknowledged by the law a very antique 
feature which is seldom so plainly alluded to in Teutonic law. (2) 
The claim, or liability, of the mother, possibly secondary to that 
of the father, but still definitely mentioned. (3) The very large 
share payable to the widow of the slain or by the wife of the 
slayer another quite unique feature. (4) The absence of any 
distinction between agnates and cognates. (5) The father's and 
mother's kindred appear to share equally. (6) The restriction 
of liability for wergild-contribution on behalf of the same 
kinsman to one slaying. The kindred evidently aims at 
shaking off responsibility for a man who is too hasty with his 
weapons. 

The older redaction of the Vestmanna Law, dating from 
early in the fourteenth century, has a very brief wergild clause 
which runs as follows 2 : 

" Whoever slays a man, let him be liable himself if (his property) suffices. 
His brother, if he exists, divides with him (the liability to the extent of) half 
the compensation as against him (the slayer). Let him (the brother) pay 
with the kindred. Let them all pay half compensation. Let those brothers 
who are together (have a common household) pay all together for what one 
of them does amiss unless it be an urbotarmal (suit in which compensation 
cannot be taken) or (a case of) immorality." 



1 This adds up to 5 marks 3^ ore, but if we might reckon that the quota of the 
and, 3rd and 4th degrees was really paid by each of the two sides of the family, 
paternal and maternal, and that the brothers paid their mark twice, once for each 
side, as in Sklne law, we should get a total of 7 marks 3 ore ; i.e. approximately 
what the heir receives, as in the Vestergotland law (p. 72 below). If the father 
and mother each pay 16 ore, the total would then be 9 marks 3 ore. 

2 Vestmannalagen, Sv. G. L., vol. V., I. Manhaelghis B. 10. 



70 SWEDEN 

Though this is so briefly put as to be unintelligible without 
the analogy of the other Swedish wergild-regulations, it is fairly 
plain considered in conjunction with them. The slayer is pre- 
sumably to pay, not the whole compensation, but a main part of 
it, if his property suffices : his brother pays half that amount, 
and each further degree half less. 

That women share in wergild liability also in this law seems 
to follow from a paragraph in the marriage law : 

" Now if a father marries his daughter to a foreigner (i.e. a man not of 
Vestmanna-land) or to another husband without the consent of kinsmen, 
then let the husband be himself responsible for his deeds as long as his 
goods and those of both of them suffice unless they (the kinsmen) have 
previously received (a contribution towards) kindred-compensation from 
them 1 ." 

The above passage is also interesting as revealing that the 
father had not complete freedom to dispose of his daughter, but 
that his will was subject to the approval of the kindred. 

Another interesting passage shows that slaying within the 
kindred was considered apart from other slayings, and that 
apparently no ordinary wergild could be paid for it : 

i. " If a father slays his son, or a son his father, that is 20 marks for the 
slaying. These are divided into three parts : let the king take one part, the 
bishop the second, and the third the hundred (district)... .For the breach (of 
kinship) 40 marks : let the king take one part, the bishop the second, and the 
hundred the third. 

2. If a second or third cousin is killed, their slaying is 3 marks. For 
the breach (of kinship), 40 marks, let the compensation go as before 2 ." 

In the later redaction of the Vestmanna Law (also a private 
compilation), there is no mention of wergild-distribution. 

The Upland Law, which we possess in an official revised 
version of 1296, has no reference to wergild-distribution, and the 
same is the case with the Sodermanna Law, of which we possess 
an official edition from 1327. The Law of Ostergotland, how- 
ever, makes up for these deficiencies. It dates from about the 
end of the thirteenth century : 



1 Gipninga B. 3, i. Cp. Sodermanna L. Gipn. B. I. 

2 i. Manhaelghis B. I. 



SWEDEN 7 1 

"Now that kindred shall pay oranbot (feud-compensation) which attacked. 
That is 6 marks and 4 ortughaer (i.e. 6 marks 5^ ore). The father's kinsmen 
shall pay two-thirds, and one-third the kinsmen on the maternal side. If there 
is a full brother 1 he pays half for all (the paternal kinsmen), whether he is a 
legitimate or illegitimate son. Then let him who is next to him (in kinship) 
pay half for all [half the whole remainder]. Then all those who are within the 
kindred to the seventh man [6th degree], let each man pay (his share ?) like 
every other 2 . Oranbot is received in the same manner as it is paid: the 
paternal kinsmen two parts and the maternal kinsmen a third : and so let him 
who is nearest on the paternal side receive half what is due to the paternal kins- 
men, and he who is next to him half (the remainder). Now he who is nearest 
on the maternal side, he shall pay half of the third. So also he who is then 
nearest : he has to pay half of what is left of the third, or deny with a twelve- 
men's oath that he was so related to the slayer that he had to pay oranbot 
for him. 2, Now the kinsmen of the slayer have to summon their kinsmen 
for oranbot: the paternal kinsmen the father's side, and the maternal kinsmen 
the mother's side. The kinsmen of him who was slain, they shall claim 
compensation on threat of feud 3 , and shall make no summons. They have 
to demand from the paternal kinsmen (of the slayer), on threat of feud, that 
they should get two parts of the compensation, and the others (maternal 
kinsmen, similarly) from the maternal kinsmen (of the slayer) that they should 
get a third of the compensation 4 ." 

We note that the slayer appears to pay nothing, but analogy 
with the other laws would suggest that there is also an heir's 
compensation (arvabof)* received by the heir in addition to the 
first share of the oranbot, and possibly paid by the slayer. 
Analogy may be our best guide in disposing of another problem. 
After the liability of the first two kinsmen (or rather classes of 
kinsmen) has been expounded, the \a gialde sua man sum man, 
*' let each man pay like every other," might be taken to mean 
that outside an inner circle of kinsmen the various degrees of 
kinship were treated alike, so that the sixth cousin would pay 
the same amount as the third. As we have no Scandinavian 
analogy for such an arrangement it is probably safer to supply 
some such phrase as " in each degree 6 /' and to take the clause as 

1 sambrctyir, but this seems contradicted by what immediately follows. 

2 j>a gialde sua man sum man. 

3 Ora aptir hot. Schlyter (Glossar, s.v.) translates: " Vindictam minitanclo 
mulctam exigere." 

4 Ostgotalagen. Drapa B. vn. 

8 Cp. Vestgota law, p. 72 below. 
6 Cp. Vestgota law, p. 72 below. 



72 SWEDEN 

meaning that payment is reckoned per stirpes and not per capita. 
On this assumption the Ostergotland oranbot would work out 
much as follows : 

6 marks 4- 4 ortughaer = 160 ortughaer 1 . This would give 1063 ortughaer 
to the father's kindred, and 53^ to the mother's kindred. The shares of the 
successive degrees of kinship would thus be : 

Father's kindred. Mother's kindred. 

Class (i) ... 53.^ ortughaer Class (i) ... 26f ortughaer 

(2) ... 26 (2) ... I3i 

(3) - 13J >. (3) - 6 

(4) - 6 (4) ... 3j i> 

>, (5) .- 3i ii it (5) .- i? 

,, (6) ... i| (6) ... 

ii (7) ... n ii (7) ... & 



On this method of computation the sum of these payments 
must of course fall short of the actual total (io6| marks, etc.) by 
the amount of the smallest contribution ; but when we consider 
that the payment was probably partly in silver, partly in cattle 
and partly in wadmal, it is easy to see that the shortage of a 
fraction of an ortugh in the total amount was quite negligible. 

We will now consider the earlier recension of the Vestergot- 
land Law (the earliest Swedish law-book), which is also full : 

4. "If they 2 [the kinsmen of the slain] will receive compensation, there 
shall be paid 9 marks arvabot (heir's compensation), and 12 marks cettcerbot 
(kindred compensation). The heir 3 shall pay 6 marks (of the latter) : 
6 marks the kindred shall pay : 3 (marks) on the paternal side and 3 on 
the maternal. The most nearly related shall pay 12 ore. Then he who is 
next 6 ore : then he who is next 3 ore : he who is next 4^ ortughaer." 5. So 
shall all pay and so shall all receive : each has less by half, to the sixth man. 
Compensation shall be shared as far as the sixth man. (Among) all equally 
related persons one branch 4 shall have as much as the other [i.e. the payment 

1 3 ortughaer i ore ; 8 ore i mark. 

3 We note that the decision does not rest here, as in the Helsingland law, with the 
plaintiff alone, but with the kinsmen. 

3 i.e. the heir presumptive of the slayer. 

4 Kolder. Schlyter (Glossar, s.v.) regards the word in this context as meaning 
' cognati paterni vel materni invicem oppositi.' The translation given above repre- 
sents the view of Otman and of Beauchet ; and seems preferable in view of the fact 
that the equality of the paternal and maternal kindreds is already twice stated in the 
passage. 



SWEDEN 73 

shall be reckoned per stirpes and not per capita]. The heir shall have 
6 marks of the attarbot and the kindred shall have 6 marks : 3 on the 
paternal side and 3 on the maternal 1 . 

As in the Helsingland law, the contribution of the maternal 
and paternal kindreds is equal. The shares would work out as 
follows : 

Each side receives 3 marks = 72 ortughaer. 

Class (i) ... 36 ortughaer. 
,, (2) ... 18 
(3) . 9 
,, (4) ... 4i 

ii (5) .- 2} 

ii (6) ... ij ,, 



In the later redaction of the Vestergotland Law there is a 
curious attempt to differentiate, not between paternal and 
maternal kinsmen, as in the Ostergotland Law, but between 
agnates and cognates, though the amounts contributed by each 
are still equal. And here we find the first trace of inconsistency 
in the Swedish laws, for the passage begins by repeating the 
statement of the earlier recension, that cettcerbot is 12 marks, of 
which the heir gets 6, and the kindred 6, and that this latter sum 
is divided equally between paternal and maternal kindred. But 
after repeating the whole of 4 it goes on to say 2 that if brothers 
live apart each pays 12 ore, and so apparently with each degree. 
Such a method of contribution would of course greatly increase 
the total. But more than this, agnatic first cousins pay 6 ore, 
and cognatic first cousins also pay 6 ore, and so on. It is easy 
to see that a totally different method of wergild contribution has 

1 Vestg. I. Af mandrapi. I. 4. 

8 Vestgotalag n. Draepare Balkr. vn. pre marker a fae}>erne ok J>re a moj>erne. 
ok taki ingin aettserstu}>i vtan en timae. ^o at ban flere maen draepi sen en. )>a skal 
|>sen skilSaste botae tolf orae.... Broker saman sok til settasrbot allir firi eno garzlij>i. 
boten allir tolf orse. sokes huar j>erne sin staj>. bote huar j>errse tolf orae. Br6J>rae 
synir scikis huar sin sta|>. botse huar saman soktir. bote allir vi. orae. seru at skilS bote 
huart Jerrae aemmykit....Systrge syni saman. sokter. bote huar }>errae saex orae. 
atskylftir bote huar ]>erre aemmykit. Systrungae born saman sokt bote }>re orae, at 
skiltS bote huar )erre aemmykit.... 

Similarly Vestgdtal. in. 63 (Lydekini Excerpta et Adnotationes). 



74 SWEDEN 

been sandwiched in between the provisions of the earlier law, 
for a distinction between agnates and cognates is incompatible 
with the statement that 3 marks are paid by the father's kindred 
and 3 by the mother's kindred. To meet this difficulty it might 
be suggested that ' mother's kindred ' may really mean ' cognates,' 
' persons related through their mother,' also in the earlier law. 
Such an interpretation, however, is impossible in view of the 
passage in the Ostergotland law which prescribes that the (near) 
paternal kinsmen summon the kindred on the father's side and 
the maternal kinsmen the kindred on the mother's side. This 
provision is even more definitely stated in the Skane and Danish 
laws, and disposes of the theory that mo\erni, ' mother's kindred,' 
might mean cognates, for it is obvious that the mother's uncle, for 
instance, could not be expected to summon the distant cognatic 
relatives on the father's side. We must therefore regard these 
particular clauses in the later Vestergotland law as an interpola- 
tion. 

The Skane law divides its wergild into three equal parts : 
one paid by the slayer, one by the paternal kindred and one by 
the maternal. As this scheme of division is also that of the 
other Danish laws, it will be more convenient to treat it in the 
following chapter. 

Other manifestations of kindred solidarity are not far to seek. 
In oaths of compurgation it is never expressly stated that the 
oath-helpers are of the kin of the accused 1 , but kinsmen's oaths 
play a considerable part in matters of inheritance and so forth. 
Thus in the Upland law the father's kinsmen and the mother's 
kinsmen divide the inheritance into shares for the children, and 
the latter draw lots which have been previously decided upon by 
the father's kinsmen. If disputes arise afterwards, eighteen first 
cousins present at the settlement declare what belongs to each 
disputant, or, in their absence the next nearest relatives 2 . In the 

1 Ostg. ^Erf)>a B. xvn. Kaere (han)lokan aella spanan (that his servants have been 
lured away) : j>a skal han dylia maej> tolf manna e)>e (the accused shall deny with 
a i2-men's oath). Cp. Hels. Manhzelises B. xxxvni: haldbani ok raa)>bani...dyli 
mae)j xim. mannse ej>e. 

a Upl. .dirty, xi. 2. Nu aghu )>er j flerum byum. )>a skulu fre|>aernis fnendaer 
ok mojwrnis skiptse hwarium sin lot...j>aer aghu mojwmis fraendwr lot skiserae. ok 



SWEDEN 75 

Ostgbta law an heir accused by his brother or sister of not being 
legitimate (in a dispute over paternal inheritance) denies it with 
15 (16?) kinsmen within the third degree: each must be over 15 
years of age 1 . 

In the Smaland (ecclesiastical) law a man or woman accused 
of having married within the forbidden degree of kinship can 
deny it with an oath of six paternal and six maternal kins- 
men 3 . 

More interesting is the part played by the kinsmen in freeing 
a kinsman enslaved through debt or otherwise : 

When kinsmen have delivered their kinsman, by purchase, from a position 
of serfdom, " Now for all his deeds which he does his kinsmen shall answer 
after he is freed and not the (his) master. At Lionga Thing they shall 
proceed to a full oath of kinsmen : each in the third degree. Let him take 
so many of one family as he can get, of those who are 15 years old. So it 
shall be with all oaths of kinsmen as is now said. Two shall witness it 
and twelve thereafter that he is so near in kinship to them and so related in 
degree that they have to free him into the company of freemen. And there- 
upon another oath of 14 men (shall) so swear that 'we free him to kindred 
and kinsmen and not to the lot of a serf.' That is the legal (price of) 
freedom : three marks of wadmal, or six marks of minted coin, or four good 
beasts. And to swear a third oath so, that two shall declare : that this is 
kinsmen's property and not his property 3 ." 



fse|>erni a skioti haldae. ok mo}>3srnis frsendser lot vp takas. klandoer f>set nokot syzkini 
sij^en fore andru. }>a aghu f>set syzlungser ok brollungser vitae ataertan }>er sum boskiptis 
fastaer waru. hwat a hwars J>erae lot kom. aeru sei J>er til. J>a taki \>om nijmm aeru naestir. 
ok kyni kunnaestir...hawaer son aellr dotter xrfft aeptir fajjur sin. \>xt go)>z. }>a fyllin 
syzlungaer ok bryllungaer boskiptis e)>. at hwar raej> fullum sinum lot. ok si)>3en witi )>a 
fa)>ir fang, ok sun fsef>aerni msej> atsertan mannae ej>e 

1 Ostg. ^Erfjja B. vill. Nu dela broj>a?r aella systaer um faej>rini sit annar kallar 
annan egh a)>alkunu son uara : )>a hauaer ban uitzs orj> uita mxfy enum at han maelte 
til ]>xt skula uara ntyia bans innan jmjna knse. annar giptse majrin (of the bride) : 
]>n\>'\ a fa;)>rinit 61buJi uar til }>ses 61s (guest at his father's marriage feast) : fiar}>i a mo)>rinit 
61buJ>i uar til j>ses 61s ok tolf seftir. man af kulle huarn i J^ri^ia knse : taki sua manga 
af enum kulle sum ban kan fa J>em sum faemtan ara seru. So also i : J>a skulu \>xt 
uita fiughurtan maen mo}>rinis fraendaer (in the case of a quarrel over maternal 
inheritance). 

2 Smal. Kristnu B, 13 8. giaeti as thet wizcustae som hionaelagh will haldse. meth 
fnendom sinom. oc kunnom mannom siaex aaf fasthringum oc sirex aaf mothringum. 
uiti thet aat ethe... etc. 

3 Ostg. ;Erf>a B. xvn. 



76 SWEDEN 

Another clause provides that if such a man is afterwards 
accused of being a serf, he can prove the contrary by declaring 
with a kinsmen's oath of 14 men that he was freed ''with 
money and the oath of kindred as was right and as the laws 
appointed 1 ." 

In the Vestgota law one kinsman can free a serf if he declares 
with an oath of twice twelve that he is so nearly related to him 
as to have the right to free him 2 . 

The laws of central Sweden (Svearike) and the later national 
and town laws show that the duty of supporting a pauper 
relative fell on those who would be his heirs 3 , as in Iceland. 

The alienation of land is subject to similar restrictions as in 
other Teutonic countries 4 . We find Pope Innocent IV com- 
plaining in 1 206 that no one in Sweden can give property to the 
Church " nisi presentibus et conscientibus heredibus 5 ." 

In the National Law of Magnus Eriksson (1347) the laws 
referring to kindred-compensation were finally abrogated, though 
the slayer could still purchase peace from the king and from the 
plaintiff 6 . Norwegian analogy would lead us to expect the total 
disappearance of all mention of kindred in wergild-treaties, 
and, still more, the absence of all contributions from kinsfolk 
towards wergild. Yet a whole series of deeds from the fifteenth 
century shows the kindreds still actively engaged in the negotia- 
tions for peace, and kinsmen also continue to pay wergild. The 
following example is fairly typical. It is dated at Linkoping in 



"This shall be known to all men, that we Marghit Joarsdottir of Askar, 
Magnus Niclisson and Hakon Niclisson, daughter's sons of the said Joar, 
Joan Joarsson of Gewinge and Staffan Joarsson, nearest kinsmen of the said 
Joar of Askum, declare with this our open letter that the honourable Ingolf 

1 Ostg. JEify. xxv. "J>a uiti mae) ej>e fiughurtan manna maej> nif>iar e}>e. at 
han uar lostser maej> fae ok fraenda e)>e sum atte ok lagh uara." 

2 Westg. ii., Aruae B. xxxi., and I. Aifyxr B. 22. 

8 Upl. Jb. 21. Westm. n. Jordb. 17. Cp. v. Amira, Nordgcrm. Obligationenrecht 

I. p. 750- 

4 Cp. Beauchet, Hist, de la proprittt! fonciirt en Suide (Paris 1904). A retrait 
lignager appears to exist in modern Swedish law. Beauchet, op. cit. p. 127. 

8 Liljegren, Dipt. Suec. No. 131. 

8 Magnus Erikssons Landslag. xm. 



SWEDEN 77 

Toppir has made full compensation to us in (money-)compensation, masses 
and pilgrimages for the death of the said Joar of Askum, whom Klemet 
Ingolfsson, the said Ingolfs father, unfortunately slew..." 1 . They acknow- 
ledge their complete satisfaction and swear peace on behalf of Joar's and 
their own kinsmen and heirs 2 . 

In another case we find the mother and father's brother 
together with 'several others of our friends and kinsmen' mak- 
ing a complete reconciliation in the cathedral yard 3 of Linkoping 
with the slayer Laurens Jensson, in consideration of pilgrimages, 
an cerwe (memorial mass?) with four and twenty priests and 
lights and torches, in this and the following year, a weekly mass 
throughout the year, and 140 marks to the nearest friends and 
kinsmen of the slain. For a hundred marks the slayer pledges a 
certain farm to the mother and father's brother of the slain. The 
' friends and kinsmen ' of both sides are invoked 4 . 

In 1419 Josse Svensson, Olaf, parish priest of Rogberga, 
Halvard, Brother Petersson, Arvid Smidh, Joar Arvidsson, and 
Ingegerd Arvidsdotter sign an urfejde (reconciliation deed) for 
Erik Gjorsson, who killed Sven Svensson. " We declare ourselves 
with this our open letter to have made, with the counsel of 
several of our friends and kinsmen, a reconciliation and a complete 
end with the honourable and well-born Erik Gjorsson for Sven 
Svensson's death, whom he slew," in consideration of a public 
apology (sona 5 ) in Jonkoping, to the brother, children, friends, 
and widow of the slain and her friends ; besides masses, money 
and a piece of Persian cloth 6 . 

These and similar cases 7 stand in strong contrast with the 
purely individual nature of the Norwegian reconciliation-deeds. 
Unfortunately the publication of the Swedish Diplomatarium 
has not yet proceeded beyond the middle of the fifteenth century, 
so that we are not in a position to draw conclusions as to the 

1 Silfverstolpe, Svensk Diplomatarium, n. No. 1783. 

2 " For* 13 Joars ok wara fraenda oc arfwa...." 

3 These reconciliations seem commonly to take place in the precincts of churches. 
Cp. Sv. D. I. No. 30 (Scriptum apud ecclesiam Wi antedictam). 

4 Ib. I. i, No. 200. i July, 1402. Linkoping. 

5 In one case a hundred knights are to be present at a ' sona.' 
9 Ib. m. No. 2683. 1419. 

7 Cp. ib. II. No. 1600 (1412, Nykoping), ill. 2664 ( J 4 J 9 : effter myna frender och 
wener raadh oc samth^kke, folbordh ok godhueliae). 



78 SWEDEN 

length of time that this form of kin-solidarity persisted, unless 
we assume that four persons who go bail for a wergild in 1608 
in Uppland are related to the slayer 1 . Until more records of 
local courts are published, however, it must remain uncertain 
how long kinsmen continued to contribute to wergild in 
Sweden. 



1 G. O. Berg, ffuru ratt skipades i Sverige for trehundra 3r sedan. Utdrag ur 
upplandska Dombocker for ar 1608 (Uppsala 1908), p. 20 : "Thessa effter ne haffua 
utfest mandzbooth for Onde smedh, som slagen bleff i thet forledne ahr 1607 : Matz 
Person i Bakenberga i Bromma sochn peninger 25 daler, Joran skomaker i Bromma 
25 daler, Hans underfougde pa Drotningholm 25 daler, Marten Hendrichson i Bromma 
12 daler... " 



CHAPTER IV . 

DENMARK 

FOR Denmark, as for Sweden, the evidence for the solidarity 
of the kindred in early times depends chiefly on the wergild 
clauses in the laws of the various provinces (Skane, Sjaelland and 
the smaller islands, and Jutland with Fyen). These laws date 
in their present form from the first half of the I3th century. 
Like the Swedish laws, they content themselves with stating 
the principle on which wergild is to be distributed, and even 
this they do so briefly as to leave us in some doubt as to details. 
As the separate study of each law would involve us in confusing 
repetitions, we will here content ourselves with summarizing 
their statements. 

Wergild is paid in three equal sums or instalments, the first 
by the slayer himself, the second by his paternal kinsmen, the 
third by his kinsmen on his mother's side 1 . There is no differen- 
tiation between agnates and cognates 2 . The paternal kindred 
are summoned to a meeting to discuss the amount due from each 
of them : " are they many," says the second Sjaelland law, " then 
each of them pays so much the less ; are they few, so much the 
more." So also with the maternal kindred. Each degree of rela- 
tionship pays one-half less than the degree nearer. The kindred 
is limited in the Jutland law by the ' fourth man ' (third cousin), 
in the other laws by the minimum payment of one 6'rtug. The 



1 A slightly different arrangement in E. Sj. L. 3, 36, but the proportions remain 
the same. 

2 Thorsen, E. Sjaell. Lov. 3, 16 : " If compensation is to be taken, the son is the 
nearest to receive it after his father, if there is a son, if there is not a son nor a daughter's 
son nor a sou's son " the heir comes next. 



8O DENMARK 

limit would probably be the same 1 . No provision is made for 
connections by marriage or for illegitimate sons, as in the 
Icelandic and Norwegian laws. On the recipient's side, the heir 
of the slain man takes one-third of the whole sum, together with 
an additional gift (gjorsum)* \ the paternal and maternal kindred 
each take one of the two remaining thirds. Women neither pay 
nor receive wergild, except .in the case that a woman is nearest 
heir to the slain, without brothers, when the Jutish law awards 
her the heir's share and gjorsum. 

In Skane, Sjaelland, etc., the wergild was originally 15 marks 
of silver, reckoned by weight. In Jutland it was 18 marks of 
silver, and this sum finally became the standard wergild all over 
the kingdom. 

All the laws contain provisions which show acquaintance 
with the actual working of the distribution of wergild. Thus 
they incorporate an edict issued by Knud VI. for Skane, that 
the slayer may not receive the contributions from his kindred 
until the very day and hour when he is to hand them over,, 
lest so the Skane Law adds he should dissipate the money 
and his kindred be forced to pay twice over 3 . The law makes 
the slayer take an oath with eleven others of his kindred 



1 The Skane law (5, 9) seems to suggest that the brother pays half the 5 marks 
due from either side : in this case we should get payments much as follows on either 
paternal or maternal side : 

mks. aur. ort. 
Brother ... ... ... ... ...240 

First cousin (brother's son, Sk. L. 5, 9) ... i 2 o 

First cousin once removed ... 5 o 

Second cousin ... ... ... ... 2 i^ 

Second cousin once removed ... ... i of 

Third cousin if 

a In the town of Schleswig gjorsum was generally a mark of gold : Slesv. Stadr. 
3 : Flensb. Stadsret 3. An i8th century translator of the Jutish Law (Eichenberg, 
1717) adds a note to the word : " Gjorsum is an addition to the wergild to be made by 
the slayer's kinsmen on account of fear of revenge, and the greater the fear, the 
higher the Gjorsum." Eichenberg, J. L. Bk. III. xxi. 3. 

8 Sk. L. 5, i. Tha sasli the hanum XT man drap aldrigh en pfenning fyr xn thoen 
sama dagh oc the samma stund XT han seal b^ta...thasttse hauir kunung fore thy swa 
skipat, at bin ser man hauir draepit sculu xl taka aettae b^taer af fraendum sinum oc fore 
hjeghtha oc fraendaer ri^thaes ataer sithaen til at bjifta annat sinni maeth hanum. Cp. E. 
Sj. L. 3, 26. Cp. Andr. Sun. Lex. Scan. 45 (Thorsen, p. n6). 



DENMARK 8l 

(presumably five from the paternal and six from his maternal 
kin), that he would be content with the same compensation as he 
is paying, had his been the injured kindred 1 . It further provides 
that if any kinsman denies his liability he must either pay or 
point out a nearer kinsman with an oath of 12 men of his kin 4 . 
In the case of a refusal to pay on the part of any of the kindred, 
the Jutland law allows the slayer to distrain goods from him by 
force to the extent of his liability. The Jutland and Sjaelland laws 
empower the slayer to take twice the amount by force, but only 
after he has obtained the consent of the kindred, and demanded 
payment in vain at three Things*. The Skane law, in accordance 
with the edict of Knud VI. mentioned above, expressly forbids 
all distraint, but allows the other kinsmen to sue the defaulter 4 . 

In case of the flight, death or outlawry of the slayer, his 
kinsmen are still bound to pay their share of the wergild. 

In all the laws the brother of the slayer plays an important 
part. In Skine the brother not only pays most, but, as equally 
related to the slayer both on the paternal and maternal sides, 
contributes equally to the paternal and maternal payments 5 . In 
Jutland law the father or son is said to be nearest to the slayer 
on the paternal side, and the brother on the maternal, but if 
there are two brothers, financially independent, one is the first of 
the paternal and the other the first of the maternal kindred. 

In Jutland law it is emphatically stated that the King cannot 
allow a slayer to purchase peace from him until he has been 
reconciled to the kindred of the slain 6 . 

All the points mentioned above indicate that, as in Sweden, 
the wergild laws were actually in force in Denmark at the time 
they were committed to writing. It is interesting to note that 
the liability of the kindred for wergild was annulled by royal 
edict earlier on Danish territory than in any other Scandina- 
vian country. According to the contemporary legal historian 



1 Sk. L. 5, 29, forae...iafna)>3e ej> maej> tolf naefndom mannum i kyni sinu. 

2 J. L. 2, 25. Cp. E. Sj. L. 3, 26. 3 J. L. i, 28, E. Sj. L. 3, 26. 4 Sk. L. 5, i. 
8 It does not seem quite clear whether he contributes half the whole 5 marks paid 

by each side, or only half the whole payment due from him. 

6 J. L. 2, 22, " ok sei a kunung frith k^p af hanum at takze, fyrrse han aer sat vith 
bins d^thas kyn." 

p. 6 



82 DENMARK 

Archbishop Andreas Sunes^n, the edict of Knud VI. for Skane 
was found unavailing to check the frequent cases of man- 
slaughter, and Valdemar II. (1202-41) issued a more definite 
ordinance : 

" If a man slays another man, let him pay compensation for him entirely 
out of his own property, unless another kinsman will of his good will give 
him something towards it." If the slayer does not offer compensation at the 
first three things after the slaying, he becomes an outlaw, but while he is in 
the country revenge may not be taken on any one else. If he flees, the 
nearest kinsmen on the paternal and maternal sides must offer compensa- 
tion two parts of the wergild " and take two parts of the truce, while the 
slayer flees with the third [of the truce], and let him never come again into 
the country until he gets the goodwill of both the King and the kindred [of 
the slain 1 ]." But though the compensation is all to be paid by the slayer, it 
is still to be distributed to all the kindred of the slain, as before. This 
ordinance was revived by King Erik Menved in 1 304. 

We cannot tell what effect these edicts had at the time, but 
that they had no permanent effect is clear from an ordinance 
dated three centuries later than Valdemar's. Thus in I537 2 
King Christian III. complains : 

" It is a general plague in the kingdom that the one seeks the life of 
the other on trivial grounds, and the only cause is that money is taken 
for manslaughter, and the slayer's innocent kindred and friends/^connections 
by marriage?), yea the very babe 3 that lies in the cradle, must collect money 
and help to Compensate for the dead, whereon many rely, and commit such 
deeds, which they would not do if they knew that a death-punishment 
awaited them in their turn." .' He therefore ordains that if any farmer or 
townsman commit manslaughter, except in self-defence or by accident, life 
should be paid for life, and limb for limb 4 . 

In these last words, with their echo of the Mosaic Law, 
we trace the influence of the force which did more towards the 



1 Sk. L., Valdemar II. 's Forordning om Drab (Thorsen, p. 244). 

2 King Christian II. had previously ordained that all who commit manslaughter 
are to pay life for life, except in a case of accidental slaying, when the slayer is to pay 
all compensation himself (Chr. II. geistl. Lov, 57, 62). But his laws were all 
repealed in 1523, after his banishment. 

8 Eriks sjaellandske Lov (3, 26) states, that if one of the slayer's female relatives on 
the paternal side bears a son before the wergild payment is due the infant has to 
pay his share. 

4 Reces, 1537 7. (Quoted by Matzen, Forelasninger over den danske Retskistorie, 
Bd in. p. 35.) 



DENMARK 83 

disintegration of the kindred than all the opposition of the 
kings Protestantism. Not only did the Mosaic Law, and such 
texts as Matth. xxvi. 52, afford kings and clerics good warranty 
for inveighing against the practice of blood-money, but the 
Protestant insistence on the doctrine of individual responsibility 
militated against the ancient traditions of kinship. 

In his ' Kolding Recess ' of 1558 Christian III. works out his 
penalties : 

" If any townsman or farmer commits a manslaughter, and it does not 
occur by misadventure or in self-defence, and the slayer is seized, let him pay 
life for life, and his share in the farm (hovedlod) be forfeited, half to the 
dead man's nearest heir and half to his lord, and let the slayer's kindred be 
therewith quit and free of all further feud, and not be burdened with any 
further compensation... But if the slayer quits the place and flees, so that 
he cannot be heard of or seized, and is sworn an outlaw, then let his relatives 
pay rightful wergild to the kinsmen of the slain according to the law, and 
therewith be free of feud, and let his share in the farm be forfeited to 
his lord. But if the slaying is found and proved to have been committed by 
misadventure and in self-defence, and the slayer is sentenced to pay 
compensation and remains in the place, then let 3 times 18 marks of minted 
money ( = 1 8 marks of silver reckoned by weight) be paid, and not more, and let 
each pay in compensation what he undertakes to pay, and the slayer and 
his kindred be therewith without feud, and the King's sheriff shall be bound 
to declare that he is in the King's peace at the Thing. But if the slain man's 
kindred venture to attack or let others attack the slayer or his kin after this, 
each of those who act so shall pay 15 marks of minted money to the King's 
exchequer and shall have forfeited the fines due to them 1 ." 

It seems as if the threat of a death-penalty had at first 
the opposite effect to that which was intended. Previously the 
law-suit instituted by the kindred of the slain man had been 
certain to result in the receipt of wergild, in which all the 
kin participated. Now it might result in a death-sentence, in 
which case only the heir of the slain man reaped any financial 
advantage. The consequence was that there was a strong 
tendency to avoid bringing slaying-suits into the courts at all. 
The kindred of the slayer, or such of them as were on the 
spot, use every effort to make a hurried private treaty with the 



1 V. A. Secher, Corp. Const. Dan., Forordninger, Recesser og andre Kgl. Breve 
(Cop. 18871903) Bd I. p. 19: Chr. III.'s Kolding Reces 1558, 13 Dec. 13. 
Hvorledis holdis skal, nar manddrab skier. 

62 



84 DENMARK 

kindred of the slain, before the seven days had elapsed in which 
the representative of the latter must declare the suit The 
frequency of such treaties can be deduced from the ' open letters ' 
which the next King, Frederick II., found it necessary to send 
to all the sheriffs in the various provinces : 

" It has come to our knowledge," he writes to the authorities of 
Helsingborg, " how many slayers live in Helsingborg province without any 
fear, when they for a small sum of money have satisfied the slain man's 
kindred and friends " ; and in a similar letter addressed to all sheriffs he 
says that he learns " that when a manslaughter has occurred, such matters 
are secretly settled and hushed up between the plaintiff and the slayer's 
kindred, with the approval and knowledge of the lords of the parties 
concerned ; and that such slayers have sought and demanded of the judges, 
and to some extent have actually obtained, through their lord's intervention 
and permission, that they should be declared at the Thing to be in 
the King's peace (liuset Fred over dennom til Tinge), although sentence 
has not been given by sandemend or nefn (doomsmen) according to the 
edict 1 ." 

This practice is now strictly forbidden, but the books of the 
King's Chancery are full of references to slayings which have 
been " hushed up " by the interested parties, and though so many 
cases came to the King's ears 2 , we may be sure that there were 
many others which did not. The King could not even be sure 
of the loyal support of his officials, for as late as 1630 we find the 
chief judge of Skane reversing a sentence of death passed on a 
slayer, and adducing, as the reason for his action, a " home-made 
deed of reconciliation, called a trygge*" (pledge of peace, the 



1 Secher, Forordninger, Bd II. p. 414 (No. 415) and p. 540 (No. 510). In the 
Jutish Law the fine to the King was four-fold if a treaty had been made before a 
verdict had been given ; but these secret treaties are concluded without any reference 
to the King at all. 

2 Kancelliets Brevbjger i Uddrag, udg. af Rigsarkivet. (Cop. 1885 1910, 10 
vols.) x. p. 95 (593) ; p. 228, 250, 342, 371 (1594), p. 635 (1596). For later times 
see the various Tegneher in the Rigsarkiv; esy.Jyske Tegnelser : 1613, fol. 13, 18, 
225; 1614, f. 24; 1630, f. 147 (bis), 225, 253 ; 1632, fol. 334, etc. 

3 fferredags Dontbog, Anno 1630 (in the Rigsarkiv). No. 33, 19 June, f. 263-6. 
Cp. also the case published in Secher's Rettcrtingsdomme> II. p. 507 (1613). E. Kruse, 
chief judge in N. Jutland, aids the slayer to hush up his deed by intimidating the wife 
and mother of the slain into accepting terms while the brothers are abroad. The 
deed they were induced to sign does not specify the nature of the injury done them, 
and no doubt some such subterfuge was often practised. 



DENMARK 85 

word used in the ancient laws). And in 1615, when the noble 
Hans Lindenov is tried by the King's Court for having killed 
one Peder Danmark in Bornholm, the defence is put forward 
that his father, who was actually Governor of the island at the 
time, had made a private treaty with the deceased's wife, 
daughter, wife's father and nearest kinsmen 1 . As late as 1679, 
the plea is put forward by the defence that the slayer had made 
a private treaty with the mother, brothers and sisters of the 
slain man 2 . 

Indirectly, however, this same haste to come to terms worked 
for the disintegration of the kindred. Slaying-suits had to be 
declared by the nearest kinsmen of the deceased within seven 
days of the slaying, and the urgent need of coming to terms 
with the slain man's representatives before this period was over 
left no time for the formal agreement of the whole kindred 
on either side. In such cases, though the relatives who sign the 
agreement expressly declare that they do so " on behalf of their 
whole kindred " they possess no deed empowering them to act 
on behalf of those not present, an essential formality if the 
inclusion of the absent kinsmen is to be legally binding 3 . Thus 



1 Herredag s Dombog ', 1615 fol. 100 ff. Printed in: J. R. Hubertz, Akstykker 
til Bornholms Hist. , 1327 1621 (Cop. 1852). No. 414. 

3 Sjallands Landsting 1679, 9 April (in the Provindsarkiv for Sjaelland). (For this 
reference I am indebted to Professor Paul Jorgensen.) In some cases the King 
appears to have been satisfied with such a private treaty even after the slayer had been 
sentenced to death or (in his absence, which was more usual) to outlawry. See Kane. 
Brev. II. p. 268 (Mogens Lauritzen) ; 305 (Povel Kock) in 1559, 381-2 (Peter 
Jostsen) in 1560, HI. p. 41 (Peder Lauritzen) ; vi. p. 378 (Lauritz Friis) in 1578, etc. 
The most remarkable case is from 1630 : Hans Jensen, a skinner's apprentice, killed 
Lambert Laursen, a shoemaker's apprentice : Hans was outlawed, but he succeeded 
in making a treaty with the kindred of the dead man and securing an orfejde, after 
which he obtained the King's pardon. Saml. Jysk. Hist. vi. ; Kinch, Af Ribe Bys 
Tingbjger, p. 168. 

3 Cp. the foil, case: "And the aforesaid Morthen Persen (brother-in-law of the slain) 
declared himself to be legally empowered (fulldmechtig) on behalf of all other common 
kinsmen and relatives, to give such an undertaking of peace, which he proved with a 
sealed deed of witness drawn up at Loding Herreds Thing, and which is now to 
be found in tlie deed-box of the town. Similarly he said that the signature and seal 
of the nearest paternal and maternal kinsmen had been entrusted to him, that he 
might seal [the document] therewith in their absence." (P. V. Jakobsen, Uddrag of 
Helsingfers Kammerregnskaber og Thingbfger i del 16 Aarh. p. 246. Ny Kgl. Saml. 
No. 697 f. 410. ) 



86 DENMARK 

we have such cases as that recorded for the Supreme Court 
in 1632 : 

Niels Bundesen killed Niels Aagesen. The slayer, his father and mother, 
and his brother, Aage, together with Niels Aagesen (nephew of the slayer ?) 
and his wife, and Jens Nielssen (son or uncle of the slayer ?) and one 
Sven Budmansen, probably a connection by marriage, all repair to the slain 
man's house, where they find the widow and her six sons. A reconciliation 
is made, and the slayer's father, Bunde, pays 6 florins to each of these boys. 
But Oluf Aagesen, the slain man's brother, not being present at the 
reconciliation, evidently does not consider himself bound by the treaty, 
and becomes the plaintiff in the suit 1 . 

The King could at least assert his authority in the case of 
such secret treaties, if once they came to his ears. But where 
the payment of wergild was still lawful, as when the slaying had 
been committed by accident or in self-defence (and these pleas 
were often successfully urged in the most surprising circum- 
stances), the royal will was actually subject to that of the injured 
kindred. The King could not admit to peace any slayer, no 
matter how accidental the slaying, unless the kindred of the 
slain man was willing to come to terms with him. In none 
of the royal letters of pardon in such cases does the King forget 
to state that the slayer has satisfied the slain man's kindred and 
friends (Slcegt og Venner) or, if this is not yet accomplished, 
to add the proviso that it is to be done before the pardon can be 
valid 2 . Occasionally, and when dealing with common folk, the 
King can take a fairly high hand, as in the case of Christiern 
Matzen, who was sentenced to pay compensation for a slaying, 
but is perpetually threatened by the slain man's brothers, 
kindred and friends. The King shortly orders all who wish to 
complain about him to sue him properly at the Thing. But in 
the case of nobles the King is sometimes reduced to vain 
pleading. Thus when Erich Bilde has slain Jorgen Rud the 
King asks that Jorgen 's brothers should give Erich a safe-conduct, 
so that he and his kindred may discuss negotiations for a 



1 Htrredags Dombog, 1632. 5 June, fol. 172 ff. 

a Kane. Brev. \. p. 258 (1553), p. 407 (1555); P- *68 (1559), p. 396 (1560) ; 
in. p. 5, p. 38, p. 66-7 (1561). P- 377 (1563), 382 (1564). P- 435 5 v. p. 48, 83 (1571), 
P- 34. 239-40 (1573). P- 425 (1574) J vi. p. 141, 148, 3/8, 481-2, 584 (1577) ; vii. 
p. 4 (1580), p. 250, 338 (1585), p. 790 (1587), etc., etc. 



DENMARK 8/ 

reconciliation. But it is more than a year before the Ruds yield 
to the King's repeated solicitations 1 . 

If it appears that all the kindred of the slain are not included 
in the reconciliation the King at once withdraws his pardon. 

Peter Jostsen, of the Aarhus district in Jutland, has slain Lauritz 
Chrestensen, and is sentenced to outlawry. He succeeds, however, in 
coming to terms with some of the slain man's paternal kinsmen, and gets a 
deed of reconciliation from them, and with this he secures the King's pardon. 
It presently turns out that he has not satisfied the rightful plaintiff (in this 
case the mother's brother of the slain), nor the maternal kindred in general. 
The King states that as his pardon was only valid if the slain man's kindred 
and friends were satisfied, the matter is to be dealt with by the sheriff 2 . 

In another case the King pardons Hans Mule, a citizen of Odense (but 
with some pretensions to nobility) and renounces the fine due to him, as 
Hans has placated the slain man's kindred and friends. Subsequently, 
however, the widow complains that she and her children have received no 
compensation. The slayer is ordered to satisfy them at once, or he will be 
liable to another slay ing-suit 3 . 

The fact that the slayer could shift some of his responsibility 
on to his innocent kindred was, as we have seen, particularly 
repugnant to Protestant ideas, and consequently it was the 
liability of the slayer's kindred which tended to disappear first. 
This can be guessed from the cautious reference to it in the edict 
of Christian III. quoted above : " let each pay in compensation 
what he undertakes to pay, and the slayer and his kindred be 
therewith without feud." 

Several cases indicate that contributions could now only be 
extracted from the kindred if they had been definitely promised 4 . 
Thus we have a royal letter from 1552, dealing with a suit by 

1 Kane. Brev. vili. p. 250 (1585), p. 564, 573 (1586). Cp. also III. p. 46, 
58 (1561); vii. p. 638 (1583); IX. p. 679 (1591). 

a Ib. 11. p. 581-2 (1560). 

8 Ib. in. pp. 46, 58 (1561). In the matter of women's participation in wergilds 
almost all other evidence is at variance with the laws. 

4 In Danmarks Rigens Ret, a private collection of laws dating from 1592, and 
partly founded on precedents from the Supreme Court, we read ( 20) : " But if any 
man is sued for having pledged himself for the payment of wergild, he shall be sued 
for wergild first at the district Thing and then at the provincial Thing (Landsting), as 
for any other debt " (Danske Magazin, in. R. Bd I. p. 177 ff.). (The persons who 
pledged themselves for wergild were, however, not always relatives : their function 
was more that of bails.) Weylle, Gloss. Jur. Dan. (Copenhagen 1652), has the 
following remarks under Bod (p. 101) : " This wergild can be required and secured by 



88 DENMARK 

the slayer against his kindred and friends, because they will not 
help him to compensate for the slaying, although they under- 
took to do so in a duly-sealed deed 1 . In Helsingor we find the 
kindred of the slain man maintaining in court that they are not 
bound to share the wergild with one of their number, Iver 
Jorgensen, because when a kinsman of theirs had committed a 
slaying in Jutland, and they had applied to Iver for help towards 
the wergild, he had always rejected their plea, and would not pay 
any of the wergild with them 2 . This seems to suggest that 
after the Reformation, the other relatives were powerless to 
secure the co-operation of any recalcitrant member of the 
kindred, unless he had given a definite promise. 

In some cases it would appear that the wider kindred is not 
even appealed to, or so we must deduce from the entertaining 
letters of Dorthe B^lle, wife of Knud Rud, on the occasion when 
she represents her husband and son at a meeting with the Skram 
family to settle wergild. Erik Rud, her son, had killed Niels 
Skram. She accepts the offer of financial help from her friends 
present at the negotiations, but insists on regarding it as a loan, 



distraint, if it is withheld, which, however, seems strange and as if contrary to the law, 
yet ex beneplacito statuentis, employed both in Jutland and elsewhere here in Denmark, 
and is practised according to the directions of the text..." 

1 Kane. Brev. I. p. 143 (1553) : Royal letter to certain officials, requesting " at de 
skulle hjoelpe Hans Korsen til hans Ret ... i Anledning af, at bans Slaegt og Venner, 
som have lovet at hjaelpe ham til en Bod for en Karl, han slog ihjel, og givet 
deres Brev og Segl derpaa, nu ikke vil opfylde deres Lofte." 

More usually it is the kindred of the slain who sue, but the same question 
of promises crops up. Thus in 1545 Anders Crestensen sues four persons on account 
of a promise they gave him for wergild (Tegnelser over alle Lande fra 1545 ; in 
Danske Magazin, R. iv. Bd I, p. 168). A case of the year 1549 records that one 
Jesper Nielsen, acting for the father of the slain, sues two persons for 20 marks, 
a black garment of Leiden fashion (?), and four florins, which had been promised by 
them and two others presumably relatives of the slayer as compensation for the 
slain man (Kolderup-Rosenvinge, Gamle danske Domme, I. No. 56, p. 112 ff.). The 
case of Anders Crestensen, in Tegnelser over alle Lande fra 1545 (Danske Magazin, 
R. iv. Bd I. p. 168) seems to be similar. 

2 " Item Morthen perssen och lass Gieldssenn gafrae tilkende, att Saadan wlocke 
er tilfornn hendt theris slechtinge wdi Julland, och the haffue ladit besogtt for 118 Iffuer 
Jorgennssen om hiellp til boid alt bekomme, tha haffuer hand alltiid Slagid sig 
ther frann, och Inngen boid wiille wdgiffue mett thennom..." Iver Jorgensen has 
a representative in court, but we do not hear the upshot. (P. V. Jacobsen's Uddrag af 
Helsingfers Thingbfaer : Ny Kgl. Saml. No. 697 f. 4to p. 746 ff.) 






DENMARK 89 

and there is no hint that the Rud family intend to appeal to 
their kinsmen 1 . This was in 1543, but that it was an exception 
is clear from many later cases. Thus a law-suit of 1559 describes 
how, after the slaying of Oluf Rytter by Niels Kaas, " Kiel's 
father, Mogens Kaas, Jens Spend of Skammergaard, together 
with several of the aforesaid Niels Kaas' kindred, offered gold, 
silver and moneys on their own behalf and on that of the 
aforesaid Niels Kaas 2 ." This case, like the following, deals with 
nobles. 

In one of the earlier deeds, dated 1513, after the slaying of 
Niels Hak by Anders Bille, the sum to be paid is promised by 
eight persons : 

"We whose names follow, Steen Bille of Lynsgaard, Niels H0g of 
Eskjasr, Tyge Krabbe of Brustorp, Axel Brahe of Krogholm, knights, Hans 
Bille of Egede, Knud Bille, High Sheriff, of Gladfaxe, Johan Oxe of 
Nielstrup and Holger Gregersen of Torup, squires of noble birth (armigeri), 
make known to all with this our open letter, that we have promised and 
pledged, and with this our open letter do promise and pledge to the nobly- 
born men, Her Henrich Krummedige, Knud G0ye and Anders Hak, on 
behalf of the nobly-born man Anders Bille, this compensation, damages and 
additional gift for the death of the honourable and nobly-born man, Niels 
Hak, whom the aforesaid Anders Bilde unfortunately slew : (viz.) to pay one 
thousand marks at Lund before this next St Martin's Day; farm lands 
taxed at three loads of corn and certain to produce this, to be paid in 
Skane, Sjaelland and Laaland before this next Easter ; one thousand marks 
to be paid on the following St Michael's Day, at Lund, and further one-and-a- 
half thousand marks, also to be paid at Lund on the St Michael's Day next 
following, and therewith one jewel [to be chosen] according to the pronounce- 
ment of six kinsmen on each side. To this we pledge ourselves and our 
heirs, to pay and discharge to the aforesaid Henrich Krummedige, Knud 
G^ye, and Anders Hak, to them or their heirs, on behalf of the aforesaid 
Niels Hak's children, the aforesaid amount of money and goods before the 
aforesaid dates, as is written above, without any repudiation or excuse of any 
kind 3 ." 



1 The letters are quoted at full length by Vedel Simonsen, Efterretninger oni 
de danske Ruder s (Odense 1845). 

2 Gamle danske Domme, I. No 130, " for ne Niels Kaasis Fader, Mogenns Kaaes, 
Jens Spend thill Skammergaard, med flere aff for ne Niells Kaasis Kio'nn, och forst 
tilbod paa for ne Niels Kaasis och dieris egenn Vegnne Guld, Solff och Pendinge." 

5 See Appendix n. No. 3 for original. 

It is to be noted that the slaying was in 1508, so that five years elapsed before the 
reconciliation, and still longer before the payment was complete. 



90 DENMARK 

Fortunately it is possible, with the help of the admirable 
Danske Adds Aarbjger, to discover with some fair degree of 
accuracy the exact relationship to the slayer of most of the 
signatories. We find them to be : 

His brother Hans Bille 1 of Egede. 

His first cousins : Johann Oxe, Knud Bille, Holger Gregersen 
Ulfstand 2 . 

His uncle Steen Bille 8 . 

His wife's uncle Niels H0g*. 

The presence of Axel Brahe and Tyge Krabbe is more 
difficult to account for on the score of relationship, unless a 
dictum of Professor VinogradofFs, in his Geschlecht und 
Verwandtschaft im altnordischen Rechte, is borne in mind : " Aus 
den Erzahlungen von den Fehden...ist auch so viel zu ersehen, 
dass es keineswegs auf die Verwandtschaftsnahe ankam, wenn 
es gait, einen einflussreichen Vertreter irgend einer Forderung 
zu finden 5 ." 

Both Axel Brahe and Tyge Krabbe were among the most 
distinguished men of their time, and the slightest connection 
with them would be seized upon eagerly. So far as the present 
writer can discover, there was no nearer connection at this date 
between the Bille family and Axel Brahe, than that after her 
death Else Bille's husband, Gregers Ulfstand, married Axel's 
sister. Else is Anders Bille's aunt. With Tyge Krabbe the 
connection seems to be of an even flimsier sort, but it is possible 
in both cases that some unrecorded marriage connected both 
much more closely than we can now guess with the Bille family. 

On the other side, Anders Hak is probably the son of the 
slain man 6 ; Knud G0ye is his son-in-law 7 . Henrich Krum- 



1 Hans and Anders are both sons of Bent Bille. 

* Bent Bille's sister Inger m. Johan Oxe, the father of the above. Knud Bille 
(High Sheriff 1505 1543), of Gladsaxe, was son of Peder Bille, uncle of Anders. 
Holger Gregersen Ulfstand was son of Else Bille, aunt of Anders. 

3 This Steen Bille, of Allinde and Lyngsgaard, is brother of Bent Bille. 

4 Anders second wife was Anne Lykke, whose mother was Kirsten H^g, sister of 
Niels H0g, of Eskjoer. 

5 Zs.f. Social- und Wirthsckaftsgesch. Bd VII. pp. I 43. 

See No. 19 in Sv. Riges Registrants ; No. 51 (Rigsarkiv, Copenhagen). 
7 He marrried Lene, Niels Hak's daughter (D. A. A. 1896, pp. 47 49). 



DENMARK $1 

medige can hardly be nearer than second cousin, or even second 
cousin once removed 1 , of the slain man. 

All this reveals a considerable degree of solidarity among 
the kindred, and the later deeds show little falling off in this 
respect. In a deed of 1542" six persons sign on behalf of the 
slayer, Peder Stygge Rosenkrands, and they prove to be his 
brother 8 , two first cousins once removed (cognatic) 4 , the husband 
of a first cousin, and his brother 8 , a second cousin 6 , and a second 
cousin once removed 7 . The difficulty of tracing the genealogy 
of the family of the slain prevents our discovering the relation- 
ship of the three persons of the slain man's kindred who sign the 
deed, but it is fairly certain that one of them 8 can only be related 
through the slain man's grandmother. 

The orfejde, or deed of reconciliation, was equally common 
among all classes, but for obvious reasons those of the nobles 
have most often survived the changes and chances of the 
centuries. For obvious reasons, also, those of the poor are much 
more brief 9 . We have to return to court records to find a full 



1 z>. A. A. 1900, p. 236. 

2 See Appendix n. No. 4. 

3 Christoffer (Stygge) Rosenkrands and Peder, the slayer, are both sons of Eiler 
Rosenkrands. 

4 Christoffer and Anders Johansen, sons of Berete, d. of Erik, Eiler Rosenkrand's 
brother. 

5 Eiler Hardenberg, who married Karen, sister of the above-mentioned Berete. 
Also his brother, Jacob Hardenberg. 

* Hartvig Tammesen, great grandson of Niels Jensen, Peter Stygge's great- 
grandfather. 

7 Christoffer Rosenkrands of Skjem, great -great-grandson of the above Niels Jensen. 

8 Oluf Glob. Both Niels Mogenssen's grandmothers were of the Glob family. 

9 See O. Nielsen, Gamle Jydske Tingsvidner (Cop. 1882), p. 99, where nine 
persons, one of them a fisherman, swear orfejde at the7%*-, in 1459. Another such 
deed is preserved in the Rigsarkiv : five persons, one a goldsmith, acknowledge 
payment of wergild at Roskilde Thing in 1493, and swear peace (see Fortegnelse over 
nogle Diplomer, No. 12, Drabssager, 69 Danmark Bd I., in Rigsarkiv). Another, 
between the inhabitants of Kjerteminde and an Odense family in 1512,15 given in 
Aktstykker udg. of Fyens lift. Sehkab, pp. 154-5. See also Hubertz, Aktstykker 
vcdkommende Aarhus (Cop. 1845), I. p. 85 (1497). (The exclusively early dates of 
these deeds are only due to the fact that later on they were written on easily destructible 
paper, while the early ones are on parchment.) Even a hovkarl, a labourer bound to 
the soil, has to satisfy the slain man's kindred and friends after a slaying, before the 
King will grant him pardon. Kane. Brcv. II. p. 268 (1559). 



92 DENMARK 

account of a reconciliation between non-noble kindreds. In 
the 7^/w^-books of Ribe a case of 1586 is recorded in which 
one Mads Bertelsen was accidentally killed in an attempt to 
separate two combatants. 

Peeler Madsen, the slayer, was allowed to purchase peace, seeing that the 
slaying was accidental. The two Provosts (Fogder), two Councillors and 
the Town Clerk, together with eight other persons " witnessed that Bertel 
Sorensen (the father of the slain), of Hjordker in Skadtsherred, stood here 
to-day before the TMttg'-CaQTt with his nearest kinsmen both on the paternal 
and maternal side : to wit, on the paternal side first Hans Terkelsen of 
Terreborg, Niels Bertelsen of the above-mentioned Hjordker, the aforesaid 
Bertel Sorensen's son, Kristen Laurtsen of Tranebjerg, Thames Laurtsen of 
Snepsagerand Nis Hansen of the above-mentioned Terreborg ; similarly, on 
the maternal side Jep Madsen of Holdsted, Peder Jenvoldsen, citizen of this 
town of Ribe, Thames Jepsen of the above-mentioned Holdsted, Peder 
Jepsen of Tvilde, Oluf Nielsen of N^rre-Vejrup and Niels Povelsen of the 
same place ; and audibly, both with hand and voice [///. mouth], granted and 
gave to Mattis Madsen of the above-mentioned Vejrup a full and faithful 
orfejde and friendship for born and unborn, according to the law, for his son 
Peder Madsen, [who] (alas !) had the misfortune to kill the aforesaid Bertel 
Sorensen's son, to wit Mads Bertelsen ; so that henceforth from this day this 
affair shall be finally and completely settled, finished with, and clearly 
decided; this matter shall never henceforward or in future be brought up 
again or discussed, nor shall the aforesaid Bertel Sorensen, or anyone 
belonging to him, at any time either trouble or persecute, or allow anyone 
else to persecute, the aforesaid Peder Madsen himself, his father aforesaid, 
or anyone belonging to him, either on the paternal or maternal side, with 
word or deed for this cause in any, manner whatsoever, on a penalty of (loss 
of) honour and of a suit in which fines will not be received. Thereupon, at 
the same Thing, Mattis Madsen paid over the legal compensation out 
of his own property, or so he said on behalf of his son, to Bertel 
Sorensen, who himself received it in the presence of the Court and of his 
kinsmen 1 ." 

We note that with the slayer's father six of the paternal and 
six of the maternal kindred of the slain take the oath of 
reconciliation i.e. it is the full trygde-ed of twelve kinsmen. 

Owing to the energy and determination of the Kings, such 
public and official reconciliations as this were possible to non- 
nobles only if the slaying could reasonably be called accidental. 
But we can find later cases still among the nobles, who were very 

1 Af Ribe Bys Tingbtger, af J. Kinch. In Samlinger til Jydsk Hist, og Topografi, 
Raekke I. Bd in. p. 166-9. 






DENMARK 93 

powerful at this period, and could bring pressure to bear on the 
King. In the following case the King's consent is almost taken 
for granted. 

Christoffer Lunge, in 1601, killed David van der Osten, another young 
nobleman, in an encounter which had some of the characteristics of a duel. 
The deed, which is in German and very long, begins with a full history 
of the quarrel and the duel, and observes that Christoffer Lunge disappeared 
immediately afterwards. But on hearing that the most distinguished member 
of the slain man's kindred, Heinrich Fleming, mother's brother of the slain, 
together with certain others of his kinsmen, 'happened' to be in Copenhagen, 
Christoffer Lunge's relatives begged for peace, and offered to do all that could 
fitly and reasonably be demanded of them, and anything else which might 
show " friendship, love, honour and service" to the kinsmen of the deceased. 
The matter is settled, on consultation with the deceased's father, brothers 
and " all other blood-related friends," on the Lunge party undertaking that 
the slayer shall give a thousand florins ad pias causas ; and that he with seven 
or eight of his nearest kinsmen shall sue the pardon of the kindred of the 
slain, in the presence of the King 1 . On the van Osten side three persons sign. 
These all belong to the German Holstein nobility, and I have not been able 
to discover their relationship with the deceased. On the other side sign : 

Holger Ulfstand (brother-in-law of the slayer) 2 . 

Axel Brahe of Elved (second cousin once removed of slayer) 3 . 

Vloss (Oluf ?) Rosensparre 4 . 

Erich Lunge (slayer's father's brother). 

Otto and Georg Skeel (Axel Brahe's great nephews, the slayer's second 
cousins three times removed) 5 . 

Jens Bille and his father Steen Bille. (The Billes, Ulfstands and Lunges are 
closely connected for generations, but the exact relationship here evades me.) 



1 For a fuller description of this ceremony see the Brockdorf-Ranzow document, 
Appendix n. In an earlier orfejde from Helsingborg the affair is on a more impressive 
scale : "On Feb. 24, 1405, King Erik of Pomerania is witness that Her Jens Nielsen 
[Lowenbalk] was summoned before him in the presence of Queen Margaret," various 
high ecclesiastics, and twenty-seven knights and seven noble-born squires, and " the 
kindred and friends on the paternal and maternal sides, and swore peace to the father, 
sons and all kinsmen and friends of the slain Jens Jensen " [Brok] " consensu et 
voluntate consanguineorum, cognatorum, propinquiorum et amicorum tarn paternorum 
quam maternorum partis utriusque natorum et nascendorum." K. Earner, Fam, 
Rosenkrantz Hist. (Cop. 1874) Dipl. pp. 47-8. 

2 Married (in 1600) Karen, the sister of the slayer. 

3 Christoffer Lunge's great-uncle, Tyge Lunge, was Axel Brahe's great-grandfather. 

4 His grandmother was Birgitte Bille, d. of the Steen Basse Bille from whom 
Steen Bille and his son Jens Bille (see below) are descended. 

5 Axel's brother Otte married Beate Bille. J^rgen (Georg) and Otte Skeel are the 
grandchildren of this couple. 



94 DENMARK 

Glaus During. (Presumably a member of the Danish branch of the 
Bremen family. I cannot trace his relationship to the Lunges 1 .) 

Another ' orfejde' for a slaying in the same year (1601) offers 
several points of interest. Albret Skeel has killed Niels Juel at 
Aalborg : 

We, whose names follow, Ove Juel 2 of Meilgaard on my own behalf and 
on that of my deceased brother's children, whose legal guardian I am, 
and also on that of my sisters, whose legal guardian I am ; Iver Juel of 
Villestrup, Mouritz Stygge of Holbekgaard, the legal guardian of Fru Anne 
Stygge, widow of the deceased Niels Juel of Kongeslevlund, Christoflfer 
Mitelsen of Lundbek, Hertvig Kaas of H0rupgaard, make known to all and 
declare with this our open letter, that whereas the honourable and high-born 
man, Albret Skeel of Jungergaardt, has (unfortunately) killed and slain our 
dear husband, brother, brother-in-law and blood-relation, the honourable and 
high-born man Niels Juel of Kongeslevlund ; for the which he was summoned 
before the Council of His Royal Majesty and of the kingdom in general ; and 
whereas, since his kindred, stock and blood-relations, brother-in-law and 
friends have both now and frequently before pleaded with us on his behalf, that 
for the sake of his wife and children, who are also of our kindred, stock and 
blood-relations 3 , we would renounce what accusation and suit we might have 
against him for the aforesaid cause ; and whereas, yielding to their constantly- 
urged request and negotiations, and for their sake and for that of his wife 
and children, and that of their kindred and friends, we have renounced the 
aforesaid summons and accusation...; we have therefore, on the contrary, 
granted security to the above mentioned Albret Skeel, on behalf of the 
aforesaid relict of Niels Juel, her children and heirs, as also on our own 
behalf, for ourselves and for our kindred and stock, on the paternal and 
maternal side, for both born and unborn ; and we have granted him, and 
now with this our open letter do grant him and his children, kindred and 
stock, both on the paternal and maternal side, both born and unborn, a 
faithful, true, steadfast, irrevocable reconciliation and orfejde..., 

As the further proof thereof... we, with the above-mentioned wife of Niels 
Juel, have attached our seals here below, and signed with our own hands, and 
kindly request to seal and sign with us the honourable and high-born men : 
Christen Holch of H^ygaard, High Sheriff of Hald, Niels Stygge of S0gaard, 
Thomes Malthesen of Tonderup, Eric H0g of Klarupgaard, Erich Lunge of 



1 It is of course not suggested that any of these deeds show the participation of 
the complete kindred, but it cannot be denied that, for such scattered clans as those 
of the Danish nobility, the meeting seems usually to be fairly representative. 

3 This family later spelt its name Juul, and is not to be confounded with the Juels. 
See D. A. A. 

3 I have not been able to make out any relationship between the Skeels and Anne 
Stygge. 



DENMARK 95 

Skovgaard and Frantz Juel of Palstrup. Actum, Viborg the 2Oth day of 
February, i6o2 l . 

This document may be considered complementary to the 
preceding ones in a certain sense; in this the kindred of the 
slain alone appear, whereas the others were written more from 
the standpoint of the kindred of the slayer. 

The persons mentioned in it may be classed as follows 2 : 

Ove Juel, brother of the slain. 

Frands Juel, his son, nephew of the slain. 

Iver Juel, another brother of the slain. 

Mouritz Stygge, brother of the slain man's wife 3 . 

Hertvig Kaas, brother-in-law of the slain 4 . 

Niels Stygge, second cousin once removed of the widow 5 . 

Thomes Malthesen, great uncle of slain man through his mother 6 . 

Erich H^g, first cousin once removed of the widow 7 . 

Erich Lunge, great uncle of slain man. 

There is an interesting sequel to this ' orfejde.' We know that 
the slayer or his family had to pay 2000 florins to secure peace. By 
good fortune a deed has been preserved, dated 20 January 1604, 
in which Ove Juel, on his own behalf and that of Niels' five chil- 
dren, his widow, Anne Stygge, and her guardian Mouritz Stygge, 
Iver Juel, Hartvig Kaas, Dorte Juel of 0stergaard, Elize Juel of 
Herup and Kirsten Juel of Kaersholm, make known that "in order 
that God's stern wrath and punishment for such a reconciliation 
for slaying, which is threatened in many passages of the Holy 
Scriptures, may to some extent be moderated and turned away, 
they had set up the 2000 florins as an endowment for the Aalborg 
and Viborg schools." The Juels were to administer the legacy 8 . 



1 For original see Appendix n. No. 5. 

3 I have not been able to place Christen Holch and Christofler Mitelsen (Torne- 
krands). 

8 Earner, Familien Rosenkrantz Hist, i det 16 Aarh., p. 236 makes Mouritz the 
brother of Niels (Hansen) Stygge, but this seems impossible, as Mouritz is here called 
Niels Juels Svoger. * Married Anne Juel (Hofman, Fundationer, \. 157). 

8 Anne Stygge is the great-granddaughter of Enevold ; Niels is the grandson of 
Mouritz, Enevold's brother. 

8 Niels Juel's mother's mother, Anne, was sister to Thomes Malthesen (D. A. A. 
1911, pp. 499-50). 

7 Anne Stygge's great-grandfather, Enevold, was Erich Hjg's grandfather. 

8 See Sam/, til Jydsk Hist. 2 R. Bd IV., p. 540 ; Skeel, Optegneher om Familien 
Skeel, pp. 114 118, and 372-3; also Hofman, Fundationer, in. pp. 281-3. 



96 DENMARK 

The number of names in the deed of gift is a clear proof that 
the proceeds of a slaying were still usually distributed among the 
relatives, but the reference to the Divine wrath shows how it 
came to be thought impious to participate in the wergild. It is 
no doubt this motive which induces two kinsmen in the 
Helsingor case cited above to declare in court that they will not 
receive any of the wergild paid for their kinsman's death, and 
that their shares are to be divided among the other relatives 1 . 
In cases where the widow and children are left in poverty we 
can easily understand how the other kinsmen would hesitate to 
claim their share in the face of public opinion, and would 
willingly concur in the general view that such money could only 
be fitly accepted if it went to alleviate the poverty of the widow 
and children 2 . Still this new view only made very gradual 
progress against the deep-rooted traditions of solidarity among 
the kindred, and it was not until 1666, under Christian V., that 
the wergild was limited by law to the heirs of the slain man 3 . 
That this limitation was not an absolute matter of course, even 
then, transpires from the fact that in the first draft of the new 
legislation we still find the old provision, that if a slayer escapes 
his kinsmen shall pay two parts of the wergild 4 . Still, this was 
cut out of the law in its final form, so that for us Christian V. 
marks the end of the old wergild system, which had really 
received its death-blow at the Reformation, though it was long 
in dying 5 . 

Before leaving the subject of wergild it might be interesting to note the 
discrepancies between the wergild-payments as actually made and recorded 

1 " Frandz Perssenn och Christoffer Jorgennssen fremkomme huer epter annden, 
berette att aff then boidtt, Som gaffues for for ne Jenns Pederssen, wiille the alldelis 
intid opbere eller anname wtaff ij nogen mode, Menn then motte deelis mellem 
anndre Slechtninge, som ther aff wiille haffue, the wiille were then fraslagenn." 

2 Thus Erich Lykke, in 1641, appears only to pay wergild to the widow and heirs. 
Sjallandske Tegnelser, Act. pub. 1639-48, B. (2) 4 (Rigsarkiv). 

3 Kong Christian den Femtes Danske Lov, ed. Secher. Bog vi. Cap. xi. i : 
Draeber mand anden af Vaade...b0de fyrretyve Lod s01v til den Drsebtis Arvinger 
alleene og dermed vsere angertys. 

4 Secher and St^chel, Forarbejderne til Chr. V's Danske Lov, Bd n. F^rste 
Projekt, 5 Bog, 6 Cap. 9 12. 

8 The principle of wergild, given to the heirs, was not abolished in Danish law 
until 1866, in the new Penal Law, 308,309. 



DENMARK 97 

in law-suits and orfejde-deeds, and the wergild-payments as set forth in the 
laws. Two points strike us at once. Firstly, the sum paid is seldom the 
1 8 marks of silver enjoined in the laws, in spite of repeated injunctions that 
it shall not exceed that sum. If it were only the wergilds of the nobles that 
were too high, we should suppose that the laws had omitted to mention the 
sums to be paid by this class. As in Sweden, there are no class-distinctions 
in the wergild clauses of the laws 1 . But plebeians also receive larger 
wergilds than their due 2 . 

The other point in which nearly all the cases are at variance with the 
laws is in the matter of the participation of women. All the laws exclude 
women, but a great number of the cases of which we have documentary 
evidence admit them to the wergild. 

Thus we find the widow included in more than one case 3 . In 1537 
a widow sues the brother of her slain husband, for having kept the wergild 
paid for his brother, so that neither she nor her son had received their 
rightful shares*. He is ordered to give her and her son a considerable sum. 
In another case, of 1567, the slayer promises the widow 34 florins and a suit 
of clothes 5 . Again in a law-suit of 1611 the widow is especially mentioned 
as included in the wergild 6 . 

In 1537 the daughter sues a male kinsman (her brother ?) for having kept 
the first instalment (arfsal) of wergild, together with the additional gift, which 
he had received for her father's slaying. He is ordered to give it up 7 . 

In a Helsingor case of 1566 the mother is to have "five good Jochum- 
florins and a suit of clothes 8 ." The mother shared the wergild in the case of 
1613 mentioned above (p. 84, note 3). 

The sisters receive wergild in a case of 1552, but here it seems that their 
shares were given to them by other kinsmen 9 . However, a letter of the 



1 Unless in the gforsum or additional gift. 

2 Anders Sjrfrensen killed a man at Ribe in 1573. The family of the slain 
demanded 1000 florins and two pieces of English cloth, but this was considered 
excessive and they did not get it (Kinch, Ribe Bys Hist, p. 221). 

3 See case of Hans Mule, p. 87 supra, and the Lunge orfejde, p. 93. In 1641 
Erich Lykke is pardoned on having satisfied the " wife and heirs " of the slain. Sj. 
Tegn. Acta pub. 1639-48 B. (2) 4. 

4 " at for ne Tomes Nielssenn hagde opbaarett Bodt oc Bedring for samme Mandodt 
oc ey hun eller hindes Bornn fangett theraff hues hende horte med Rette." Kolderup- 
Rosenvinge, Gamle danske Domme, II. No. 22, p. 32 ft'. 

8 Helsingor Byting : 7 Ap. (For this reference I am indebted to Prof. Jorgensen.) 

6 Secher, Rettertingsdomme, II. 29, " hjfetrue slegt og venner." 

7 Kolderup-Rosenvinge, Gl. d. D. II. Fortale No. 20. Elline Christiernsdatter 
c . Jens Christiernsen. 

8 1566, 25 July (Frands Persen, etc.), P. V. Jacobsen, Uddrag, p. 246. 

9 Gl. d. D. I. No. 83, p. 172 f. After the slaying of Niels Mogenssen the 
paternal kinsmen present the whole of their shares and the full third taken by the 
paternal side to their cousins, the sisters of Niels Mogenssen, minus a fourth part 

P. 7 



98 DENMARK 

king's to the Rud family in 1 593 seems to show that he regarded the sisters 
of the slain man as having some share in granting terms to the slayer, for he 
observes that the proffered terms were rejected by the brothers and sisters 
of the slain 1 . We have already seen that the sisters of Niels Juul obtained 
wergild in 1602. 

It is however to be noted that all these female relatives were near 
relatives of the slain. We never hear of a female cousin receiving or 
claiming wergild. 

The only evidence that objection was ever taken to the women's share 
appears in a case of 1599, when Karine Matsdatter sues one Jorgen Jull for 
wergild for the slaying of her son, and then it is perhaps characteristic that 
it is a lawyer, engaged on Jorgen JulPs side, who pleads that "since the law 
declares that women-folk neither pay nor receive wergild, he presumes that 
Karine Matsdatter cannot claim it legally." Jorgen has already satisfied the 
' kindred ' of the slain, who have given him an orfejde. Unfortunately 
the judgment does not decide the question of Karine's claims 2 . 

The position of women is more prominent than the laws would lead us to 
expect in one other point. The laws do not apportion any share of wergiid 
to connections by marriage. Yet we find Frantz Persen entitled to a share 
of wergild in the Helsingor case 3 , though he is only married to the slain 
man's sister. So also Holger Ulfstand, in the van Osten orfejde*, and 
Hertvig Kaas, in the Juel orfejde* 1 . Knud G^ye appears to receive wergild 
for Niels Hak, though he is only his son-in-law 6 . In this connection it 
is perhaps worth noting that the kindred of the wife seem to play a consider- 
able part in deeds of reconciliation 7 . After the death of Councillor Anders 
Sorensen Klyn at the hands of S0ren Jensen Bramming, at Ribe in 1598, 



which they give to their own sister, who is in a nunnery. But finally they decide to 
present the whole wergild (1500 marks) to hospitals and schools, as it seemed to them 
too small for them to receive with dignity. Frantz Dyre, who has married one of 
Niels Mogenssen's sisters, then claimed his wife's share. 

1 Katie. Brev. x. p. 115, ' sodskende.' 

2 Secher, Rettertingsdomme, I. 298, 20 Oct. 1599. There is another case turning 
on the right of women to be plaintiffs (eptermalsmcend) in slaying-suits (Gl. d. D. 11. 
505, 1597). We may note several cases where a woman was plaintiff in slaying-suits : 
thus the widow, in 1611 (Secher, n. p. 375); the widow and sister's son, Helsingor 
Byting, 1579, 2 ^ Oct. ; the widow, ibid. 1587, 9 Jan. ; Rettertingsdom, 1615, 7 March 
(fol. 94) : ib. 1647, 5 May, fol. 146 : the stepmother, ib. 16 Aug., 1671 (Sylow, p. 43). 
In all these cases it is probable that the plaintiff received wergild, if it was paid. 

8 "Frandz Perssenn och Christoffer Jorgennssen fremkomme huer epter annden, 
berette att aff then boidtt, Som gaffues for for ne Jenns Pederssen, wiille the alldelis intid 
opbere," etc. 

4 p. 93 supra. 5 pp. 94, 95 supra. 8 p. 89 supra. 

7 Thus, in the Bilde orfejde, Niels H0g is the wife's uncle (p. 90 supra) : Niels 
Stygge, in the Juel orfejde (p. 95), is an even more distant relation of the wife : Erich 
Hfig is her first cousin. 



DENMARK 99 

the terms of peace (in 1603) were that the slayer should produce 400 florins 
to be spent in charitable purposes in Ribe, at the discretion of the widow and 
her kindred and friends 1 . 

The history of the oath of compurgation is more difficult to 
trace. We have seen that the Jutish law demands an oath from 
six of the paternal and six of the maternal kindred of the slayer 
when a treaty is being concluded, and we find a reference to this 
as late as I586 2 . (We may note the "pronouncement of six 
kinsmen of either party " stipulated for in the Bille orfejde (p. 89 
supra).) 

The oath of twelve kinsmen is a common method of proof in 
all the laws. A person accused of manslaughter, for instance, 
can clear himself by taking an oath of innocence, together with 
eleven of his kinsmen chosen by the other side*. Such an oath, 
the kyns ncefnd in older Danish, later kifins ncefn, serves to 
establish the right of inheritance of an infant, etc. 4 A somewhat 
similar ncefn serves the purposes of an arbitration court. 
Brothers and sisters cannot go to law with each other about 
landed property ; if they are discontented with their shares they 
must summon " twelve of their best kinsmen," who will redis- 
tribute the lots if necessary 5 . This is called the samfrcender ed, 
' oath of common kinsmen.' 

The oath of compurgation was peculiarly repugnant to 
Protestants as favouring perjury, and the kjfns ncevn finally 
became degraded, any stranger who could be persuaded to swear 
being bribed to do so. In 1615 Christian IV. complains: 
" Similarly among the common folk also a great abuse is 
common, namely that when any farmer is required to give his 
kjQnsed) it is their way to seek these far away and fetch them, 
sometimes from outside the province, sometimes from outside the 
district, such as will allow themselves to be persuaded to swear 
their oath 6 ." But he does not restrict the oath-takers to 



1 Kinch, Ribe, n. p. 218. * p. 92 supra. 

8 J. L. 2, 9. Cp. also 2, 113, 115. 
4 J. L. 1.4. Sk. L. I. 2. 

B Eriks sj. L. I., viil. For cases of kijns nafn, see Heise, DipL Vibcrgensc 
p. 128. 

6 Reces, 31 Mar. 42. Secher, Forord. ill. p. 449. 

72 



IOO DENMARK 

kinsmen, only to persons within the same district, and in 1642 
Weylle only describes the oath thus : " Ki<f>ns Eed, so the oath 
is termed which is taken within the kijn y i.e. nearest kindred 
and relatives within the fifth degree (in old days) 1 ." 

But the samfrcender remained a flourishing institution very 
much longer, as it did not come into collision with Protestant 
prejudices. Christian V.'s new law still ordains arbitration by 
them in cases of disagreement between brothers and sisters with 
regard to inheritance 2 , and in settling disputes within the family 
as to profits of a farm 3 . It is only when we come to Baden's 
Danish Law Dictionary of 1822 that we find that the samfrander 
need no longer be connected with the disputing parties 4 . 

In law-suits of the end of the i6th and first part of the I7th 
century, references to samfrander occur fairly frequently. Thus 
in a case of 1595 one Neils Olsen states that twelve samfrcender 
have been at the farm to decide on the amount of his share*. 
In the same year a Fru Anne Tidemandsdatter, a widow, sues 
Anders Malthesen for not carrying out a 'judgment of the 
samfrcender* to hand over her dowry, etc. 6 

As in Norway and Sweden, the alienation of inherited land 
was restricted by customs of an originally tribal nature. In 
Denmark such land might not be sold until it had been offered 
to the prospective heirs at three Things 1 . We have however 
already pointed out that the survival of such a right of 
pre-emption on the part of the heirs is of no value in estimating 
the degree of solidarity in the kindred at any given period. 

The evidence we have just surveyed is far from complete, 
for it is probable that the local archives stored in Viborg would 
yield much information if searched. But we have seen enough 
to justify us in concluding that in Denmark the kindred was 
capable of acting as a corporate body for nearly a century 



1 Weylle, Glossarium, s. v. Kjjiis eed. Italics mine. 

2 Chr. V.'s Danske Lov, v. c. 2 68. 
8 Ib. in. c. 12 13. 

4 s. v. samfrander eed, samfranderskifte. 

6 Secher, Rtd. p. 33. 

Ib. p. 35. Cp. also p. 109 (1596), p. 452 (1603), p. 555 (1604), p. 606 (1604). 

7 See Baden, Dansk Juridisk Ordbog, 1822, s.v. Lwbydehe. 



DENMARK 101 

after the Reformation. The attacks of Knud the Great, of 
Valdemar II., of Erik Clipping, renewed by Christian II. and 
Christian III., shook, but could not shatter a solidarity which 
was rooted in we know not how many hundred years of popular 
custom ; and the energy with which Christian IV. set himself 
to enforce the edicts of his predecessors would hardly have 
succeeded, we may surmise, but for his mighty ally, the 
Protestant Church. 



CHAPTER V 

NORTH GERMANY AND HOLLAND 

I. Schleswig-Holstein 

FROM no point of view can the modern province of Schleswig- 
Holstein be regarded as homogeneous. 

Ethnologically \ the main distinction is of course between 
Danes (or perhaps we should rather say Jutes) in the greater 
part of Schleswig, and Saxons in Holstein. But a dividing line 
cannot be definitely drawn along the boundary between the two, 
for Schleswig is not entirely Jutish. The inhabitants of the 
islands Sylt, Fohr and Amrum seem to be akin to the invaders 
of Britain, and there is probably still Anglian, or more properly 
English, blood in Angeln. Besides this original substratum, 
there is a considerable colony of a Frisian type, which was 
already settled on the west coast north of Ditmarschen, in the 
district known as North Friesland, by about 850 A.D. Moreover 
most of the Schleswig noble families are of Holstein extraction. 

But if the population of Schleswig is not homogeneous, that 
of Holstein is still less so. 

The bulk of its population is Saxon, but these Saxons 
appear to be of a mixed origin, a people with affinities 
apparently English rather than German having descended on 
another people of more definitely German type, the result being 
that the latter absorbed them. The inhabitants of Ditmarschen 
are supposed to be Saxon, with a leaven of Frisian blood. 



1 A survey of the evidence is given by Sering, Erbrecht und Agrarverfasmng in 
Schl.-H. (1908), pp. ipff. 



NORTH GERMANY AND HOLLAND IO3 

Wagrien, the eastern part of Holstein, left desolate by migration, 
or so it is said, was given over to the Wends by Karl the Great, 
and only won back in the I2th century. Lauenburg seems to 
have been originally Slavic, but the Slavs were gradually ousted 
by Saxon colonists in the 1 2th century. That there was a large 
subject population of Wends in most Saxon districts is revealed 
by the I3th century Sachsenspiegel. 

Nor was there any political homogeneity in early times. Until the 
fifteenth century Schleswig was often under Danish rule, while Holstein 
was a Saxon possession. In the fifteenth century, however, they were united 
under their own Dukes, but Ditmarschen, which had broken free after the 
battle of Bornhoved in 1227, remained an independent republic, under the 
nominal suzerainty of the archbishops of Bremen, until 1559. 

In 1326 the islands Fohr, Sylt and Amrum were apportioned to Denmark, 
together with part of North Friesland, while the marsh-land and moor 
districts of North Friesland fell to the Dukedom. In 1426 and 1435 Sylt 
and Amrum were joined to the Dukedom. On the other side of the 
peninsula the Dukes of Sonderburg remained practically independent 1 . 

Under these circumstances it is not wonderful that the legislative system 
of Schleswig-Holstein is somewhat complex. In most parts of Schleswig 
the Jutish law was in force. North Friesland, however, had two laws of its 
own : the Siebenhardenbeliebung of 1426, superseded in 1572 by the Nord- 
strander Landrecht ; and the Eiderstedtische Krone der rechten Warheit, of 
1426, superseded by the Eiderstedter Landrecht of 1591. In the east, the 
Sonderburg Dukes exercised independent legislative powers ; and after 1683 
Christian V.'s Danish Code was in force on the islands of Als and Arroe. 

In Holstein, the Neumiinster KircJispielsgcbrauche and the Bordesholmer 
Amtsgebrciuche seem to have been committed to writing in the I2th century, 
and were in force over a large part, if not the whole, of Holstein (except for 
Ditmarschen). Like the Jutish law in parts of Schleswig, they were not 
officially superseded until the end of the igth century. The Sachsenspiegel, 
however, seems to have played a subsidiary part in some districts of Holstein 2 . 

1 For the practical difficulties and evasion of justice made possible under this 
system, see a letter of the Amtmann of Steinburg to Christian III. (pub. in Neues 
Staatsb. Mag. iv. pp. 2506".). A slayer had sent 3 of his kinsmen to the Amtmann, 
"um mit des Toten Freunden zu verhandeln, so den Doden wolden tho gelden 
nehmen," but the noble Jtirgen von Ahlefeld took the slayer and all his goods to 
Krummendiek, whereby he escaped the jurisdiction of the Amtmann, " luw. Kon. 
Matt. Gerichte und Hoheit vnd des Doden Friint nicht tho ein geringen vorkleiner- 
unge." Also quoted by D. Detlefsen, Gesch. der holsteinischen Elbmarschen, u. 
p. 191 (Gliickstadt 1892). 

8 Sering, Erbrecht und Agrarverfassiing in Schl.-Holst. p. 31. Cp. G. W. Dittmer, 
Das Sasseti- und Hoi stein- Recht in practischer Anwendung auf einige im idde Jhdl. 



IO4 NORTH GERMANY AND HOLLAND 

The island of Fehmarn had its own laws, and so of course had Ditraarschen. 
Most of the towns had their own laws, but Burg in Fehmarn, and Tondern 
in Schleswig, had adopted Liibeck law, which was considerably influenced by 
Hamburg and even Westphalian law. In the marsh districts there were also 
various local marsh- and dyke-laws, some customary, one conferred by the 
Danish King Christian III. in 1552 or 1557. 

The wergild laws not unnaturally reflect more clearly the 
original racial cleavage between Schleswig and Holstein than 
their late political unity. For this reason it will be easier to 
treat of their development separately. 

A. SCHLESWIG. 

For a discussion of the Jutish law we need only refer to the 
preceding chapter. As in Denmark, wergild (in place of the 
death-penalty) was restricted in 1558 to cases of manslaughter 
in self-defence or by misadventure; for though theoretically the 
Kolding Recess of that date had no validity in Schleswig, as 
a matter of fact the German annotators of the Jutish law insert 
its clauses against wergild into their editions 1 . 

The Siebenharde charter of 1426 deals almost entirely with 
inheritance ; the only clause of interest to us is 7. " Whatever 
man shall slay another dishonourably, or after a reconciliation 
and payment, that man shall be dishonoured and have no peace 
in the 7 harde (districts), and the kinsmen shall pay for the 
slain man 24 English pounds" (a complete wergild) 2 . 

For the five districts (funfharde), which came to compose the 
Nordstrand territory, the following account, by Johannes Petreus, 
of the legislation of 1518 gives sufficient information : 

"Anno 1518 the Five Districts assembled again at the order of the Lord 
of the country, Duke Friedrich,...to consider the law of the land and previous 

vorgekommene Civil- und Criminal-fdlle (Liibeck, 1843), p. 95, "Sassisch Noet- unde 
Vhaer-Recht" (1579). But p. 180: a reference to the 6 weeks within which wergild 
must be paid must refer to the Schlesische Landrecht (cap. 1 10) or to a town law, rather 
than to Sachsenspiegel (which has 12 weeks); see Gaupp, Das Schles. Landrecht. 

1 That these clauses of the Kolding Recess were in force in Schleswig before the 
passing of the Act in 1636 (see p. 108 below) is proved by a case published by Stemann 
(Schl. Recht- und Gerichtsvcrfassung, Schleswig und Flensborg, 1855), P- 3II > Wies 
Harde No. 5) for 1631-2, where the local court condemns the slayer to death although 
he has come to terms with the kinsmen of the slain. 

a Richthofen, Friesische Rechtsquellen, p. 579. Cp. p. 570: Judgment of 1439, a - 



NORTH GERMANY AND HOLLAND IO5 

ordinances, and to explain better certain Articles, whereupon especially the 
ancient devilish and godless custom and blood-rule : 'whoso has fists may 
smite and whoso has money and goods shall pay ' was partially expunged 
and deleted. For when a slaying was committed here, the blood-relations 
who are nearest related to the slayer used to be considered just as guilty as 
the actual culprit, and were attacked in their houses and beds, before they 
were aware of what had befallen, by the kinsmen and blood-relations of the 
slain ; often killed, or brought into imprisonment, bound or set in irons, until 
they had paid up the established compensation, 90 gulden, and so had made 
peace with the kinsmen (of the slain). Such a godless custom and evil 
tradition was to some extent annulled at this assembly, and the following 
article substituted for it : 

' If anyone commits a slaying, howsoever and wheresoever it shall happen, 
it shall be at the stake of his own neck and property, and the kinsmen shall 
be wholly and entirely clear of the slaying 1 .' 

At such new articles, and at others which were somewhat bettered, the 
common folk and especially the fire-brands 2 and mad-caps were very ill-pleased, 
and have often severely censured and abused the Five-District Councillors, and 
reproached them as traitors to the Fatherland, and as infringers and destroyers 
of the good old traditional privileges and rights ; and such persons desired 
none the less to proceed and continue in their old ways ; until His Majesty 
Christian III. was forced on several occasions, as in Anno 1534 and 1540, to 
fortify and confirm by public mandates the Five-Districts' amendment of 
the law 3 ." 

The above restrictions do not, however, prevent the Nord- 
stranders from adding, in the same amended edition of their 
laws, various clauses regulating the receipt of wergild 4 , and we 
shall see that wergild was still paid by kinsmen long after 1518. 

In the Eiderstedt district of North Friesland the " Krone der 
rechten Warheit" of 1426 divides the wergild into two parts, one 
called boyne-bothe paid by the slayer to the barne bloet, the heirs ; 
and the other for the kindred at large 5 . The latter sum is 



1 "van dem dodtschlage fry sin." In 1558 this is expressed as follows: "de 
frunde scholen gantz und gar darvon sin " " the kinsmen shall be wholly and entirely 
dissociated from it." 

2 " isenfreter. " 

3 Petreus, Be schriving Nordstrands, in Quellen-Sammlttng der Gesellsch.f. Settles, - 
Hoist. Gesch., v. (Kiel 1901), pp. 121-2. 

4 Nordstrander Landrecht (1572), ir, 27. 

8 Theoretically the first-mentioned is called boyne-bothe (slayer's bathe) or bothe, 
and the latter is the thale. But the whole wergild is frequently called bothe in this 
law, and in the Beliebung of 1444, i, the boyne bothe [or the whole wergild (?)] is 
obviously called thale, since it has to go to the barne bloet. Fr. Rq. pp. 571 f. 



IO6 NORTH GERMANY AND HOLLAND 

1 8 "grote Mark." On the strength of a charter of 1466 (see 
below p. 1 08), we may perhaps assume that in this law, as in 
other Frisian laws 1 , the boyne-bothe was twice this amount 2 , in 
which case the total would be 54 " grote Mark 3 ." The distribution 
of the wergild would seem to be as follows 4 : 

grote Mark 

A. (boyne bothe) paid by slayer to sons (and sons of 36 (?) 

daughters, 18) 

B. i. enhizkes bothe ('household' bothe) to brothers: of 

this the sons of [? deceased] 5 brothers and of sisters 

take \ ( 19) 6 

2. [descendants of grandparents exclusive of father and 

mother] : 

(uncles and J a. paternal fedriethom and fedethom 6 , ... 3 
first cousins) \ b. maternal, omesthom and medderthom' 1 '. 3 

3. The four Kluffie [descendants of four pairs of great-grand- 

parents exclusive of cl. 2 above] : 
(parents' great uncles, 



ist cousins 
2nd cousins 



a. paternal (a) and (/3) \\ 

b. maternal (a) and (fi) \\ 
sons of 2nd cousins once removed). 

4. The 8 Fechte [descendants of 8 pairs of great-great-grand- 
parents exclusive of cl. 3] : 

(grandparents' ist cousins f a. paternal (a 8) ii 

parents' 2nd cousins -! 

3rd cousins) [ b. maternal (a S) i| 

18 
The mother's kindred thus benefits equally with the father's kindred. 



1 See infra under Friesland. 

2 But cp. the earlier charter of 1446 (p. 108, note i, infra) where it says that if the 
slayer fled the kinsmen are to pay two-thirds of the wergild. It is conceivable that 
this might be their original share, in which case the proportions would be as in Danish 
and not as in Frisian laws. 

3 The Danish wergild is 54 marks (18 marks by weight = 54 marks of minted money). 
* Richthofen, Friesische Rscktsquellen, pp. 563 ft"., 15 23. Cp. v. Amira, 

Erbenfolge und Verwandtschaftsgliederungnach altniederdcuischen Rtchten, pp. 162 ff. 
8 This seems to me to follow from 19 : hebbem<? [the brothers] brodersons edder 
silstersons, so bo'rt enen dat drudde deel to nemende : otherwise it would have been 
simpler to say hebbense sone. 

6 These terms might be reproduced in German as ' Vaterbruderthum ' and 
4 Vaterschwesterthum." 

7 ' Mutterbruderthum ' and ' Mutterschwesterthum.' 



NORTH GERMANY AND HOLLAND IO? 

The iour Kluffte share equally, each receiving 18 "olde torneye 1 " (evidently 
= | mark). Within each Kluffte each class great-uncle, first cousins or 
second cousins appears to take an equal amount 2 ; and on the slayer's side 
the Kluffte seems similarly subdivided 3 . So also, no doubt, in the case of 
the Fecht*. Each Fecht takes 9 " olde torneye." 

In 1446 Duke Adolph issued an edict for Eiderstedt, 
imposing a death-penalty except in cases of self-defence. If the 
slayer fled, the paternal and maternal kinsmen were to pay two- 



1 Large silver pennies of Tournai. In 1356 32 "olde grote tornosen" = i mark 
(not a grote mark). Cp. Schiller-Liibben, Mnd. Wb. s.v. tornose. 

2 Or so I understand 22 : " Dat is de erste kluffte vp des vaders side, de 
oldevader sin broder de nimpt de xvm. olde torneye mit sinem brodersone vnde 
mit sinem siistersone, vnd mit sinem brodersones sone vnd mit sinem siistersones sone. 
Des geliken de oldemoder vp des vaders siden, ere broder de nimpt ock xvin. olde 
torneye mit siner siister thorn vnd broderthom, vnd de fadrye vnd de oem de nemen 
den andern del, vnd de siisterson vnd de broderson nemen den driidden del." I take 
this to mean that if there is a great uncle living (we will call him A), he takes of 
the whole, and his sons or sons' sons nothing : if one of his brothers, deceased (B) 
has left a son (Bb) (ist cousin once removed of the slain) he (Bb) takes \ as 
against his uncle : then (regarding this son Bb as the uncle (fadtye or oem) of Ccc, the 
descendant of a third great-uncle, C) C and Cc both being dead (or Cc being a woman) 
Ccc (and cousin of the slain) would take the remaining third. Of course there might 
be many more than one in any class. 

8 The above system would apply to the slayer's kindred also, and does seem to be 
indicated by the puzzling 15, which appears to mean that on the slayer's side kinship 
is recognized by the number of degrees between the slayer and the common ancestor, 
not between the common ancestor and the contributing kinsman. Thus we should 
avoid the difficulty noticed by Brunner (Zs. der Sav. Stift. ill. ' Sippe und Wergild,' 
pp. 22-3) of a difference between the method of reckoning liability for wergild and that 
of participation in wergild. The hypothesis receives support also from 18 (for the 
boyne bathe). " Of the daughter's sons' boyne both, when the sons take the both...." 
But see Brunner, pp. 22-3, and v. Amira, Erbenfolge und Verwandtschaftsgliederung, 
p. 163. 

4 In this case it would be Aa (grandfather's ist cousin), Bbb (father's 2nd cousin) 
and Cccc (slayer's third cousin) who would share equally (each 3 olde torneye). 
Perhaps a diagram would make this clear : The supposed recipients have asterisks ; 
the persons supposed to be living are underlined, f. = female. 

Fecht a (a): 

gtgt grandfather 



D 


i 
C 


I 

B 


i 
A 


gtgrandfather 


Dd 


L 


1 


Aa* 


1 
grandfather 


Dddi. 


c\, 


*Bbb 


\ 
Aaa 


father 


\ 


\ 






1 


*Dddd 


*Cccc 






slain. 



IO8 NORTH GERMANY AND HOLLAND 

thirds of the vvergild 1 . In another charter, of 1466, the Duke is 
conservative in apportioning the relative responsibility of the 
kinsmen : 

" Of every wergild the kinsmen shall have the third part 
as tale. The father's kinsmen and the mother's kinsmen shall 
divide it among themselves, and they shall divide it among 
themselves when the payment for the man is made 2 ." 

In 1522 manslaughter, blinding and maiming were all 
recognized as Frundeschaden injuries involving the participation 
of the kindred. In the Landrecht of 1591 the slayer is not to be 
liable to pay wergild, if he can prove that he committed the 
slaying in self-defence. But if he has in any way overstepped 
the limits of pure self-defence he is liable to pay wergild to the 
kinsmen of the slain 3 . There is perhaps an attempt to limit the 
field of recipients in the following : 

Art. 50 I. "If a man, for the above mentioned reasons, is 
not punished in his life and person, then the wergild... is due to 
the slain man's nearest blood-relations and heirs, and those who 
are not connected with the heirs are not entitled to such wergild 4 ." 

In 1607 secret treaties between the two kindreds are declared 
invalid 5 . 

In the Danish parts of Schleswig, then, the first serious check 
on the practice of wergild occurred in 1558, with the publication 
of the Kolding Recess. In 1636, however, an Act was passed by 
the Schleswig Landtag 6 , in the names of the Danish King and of 
the Duke, lamenting the revival of the highly penalized ' fist 



1 Fr. Rq. p. 574 : " Wert de handdadige ock landfliichtig, so scholen des vaders 
vnd moders friinde betalen twee saale." Saal is the word in use in the Jutish law for 
wergild instalments. 

2 Fr. Rq. p. 576 ( 8): "van eyner iewelken manbote scholen de vrunde dat 
driidde deel to tale hebben. De vadervriinde vnd de modervriinde scholen de under 
zyk delen, vnde dat scholenze vnder zyk delen wan de man betalt werd." 

8 This had evidently become a necessary stipulation, cp. Fr. Rq. p. 571 (1444), 
i : "de nam do de bothe vmme vnd scheffte de thaale nicht eher he starf." 

4 Das Eyderstedtische Landrec /it... von B. Grauer (Tondern 1737), p. 141: "sind 
diejenigen, so des Entleibten Erben unbefugt, solcher Mann-Busse nicht fahig." 

6 Stemann, Gesch. pp. iigff. 

6 Landgerichtsordnung, GlUckstadt 1637. Constitutio de Anno 1636... bet reffend 
die Ecclesiastica und Criminalia: p. 103, "mit wieder einfuhrung des hoch ver- 
bottenen Faustrechts." 



NORTH GERMANY AND HOLLAND IO9 

law '..."which has resulted in recent years in the slaying of 
many men, not only nobles, but also persons of humbler rank 
being miserably put to death, without any kind of punishment, 
wherefore the whole country is as it were flooded in spilt blood, 
which cries to God in Heaven for vengeance "... 

It is said that "hitherto, either the kinsmen of the slain have not wished 
to prosecute at all, or allowed the slayer to buy off the suit after suing for 
pardon or for a certain sum of money : but such ' transactioiies ' do not wash 
away the innocent blood from the land in which it is shed, nay, far from it, 
and do obstruct and hinder the just and legitimate use of the sword, placed 
by God in the hands of the legitimate authorities. Consequently all such 
and similar treaties will not be heeded in future, but the slayer will have to 
clear himself in the eyes of the Government notwithstanding 1 ." 

It is further ordained that the kinsmen of the slain are to 
prosecute either in the High Court (Landgericht) or in the 
seignorial courts 2 . This last is a blow aimed at the little local 
Things of each district, but the records collected by Stemann, 
some of which will presently be quoted, show us that slaying- 
suits continued to be prosecuted in the latter until the beginning 
of the 1 8th century. 

The complaint made in the Act as to the ' revival ' of feuds 
(and therefore probably of wergild) is probably justified. In the 
first fervour of the Reformation we find the kindred of the slain 
occasionally renouncing their right to a composition, and urging 
the execution of the slayer on religious grounds. This tendency 
is particularly noticeable in the Flensborg records. 

In the " Red Book, wherein are all evil deeds which have been brought 
before the Court at Flensborg since the year I56o 3 ," we find the injured 



1 Ib. p. 109, "Vnd well des Entleibeten Freunde biss anhero | entweder gantz 
nicht klagen wollen | oder auch der (?den) Thater | der anklage | nach geschehener 
Abbitte | oder vmb gewisses Geld erlassen | solche Transaction** aber | dass vn- 
schuldige Blut von dem Lande | worinne es vergossen | nicht abwaschen | viel 
weiniger | der ordentlichen Obrigkeit das Schwerdt | welches ihr von Gott in die 
Handt gegeben | vnd desselben ordentlichen rechtmassigen Gebrauch | hindert vnd 
beniemet | Als sollen solche vnd dergleichen Vertrage | ins Kunfftig nicht attendiret 
werden | sondern nichts destoweniger | der Thater sich selbst ad piirgandnm bey der 
Regierung schuldig seyn." 

8 Ib., p. 107. 

3 Schleswig, Staats-Archiv, Acta C. xix. i. No. 30, " Rodeboeck darinne alle 
oueldeder so sedder Anno 1560 tho Flensborch...vorclageth." 



1 10 NORTH GERMANY AND HOLLAND 

kindred repudiating the offer of terms made in the Court by the slayer's 
kinsmen, while either they or the 'doomsmen' enunciate such sentiments 
as the following : " Since the Lord God has ordained, that every man who 
fights with the sword shall also fall by the sword 1 ." "We do not condemn 
thee, but thine own deeds, and the holy law 2 ." 

Occasionally we note an attitude of apology at receiving 
vvergild. Thus in 1589 Johan Boye was killed by Dr Berendt 
Schwering. At the Schleswig court the brother of the slain, 
Boetius Boye, a Protestant minister, forgives the slayer on his 
own behalf, that of his wife, and his heirs, born and unborn. 
" In order that tJiis treaty may be kept the more firmly and 
steadily, a hundred gulden are to be paid up for the said 
reconciliation... 3 " 

In other cases the relatives declare themselves willing to 
forego their shares in favour of the widow and children of 
the deceased. 

Thus in 1627 Niss Anderson, a bricklayer in Flensborg, has been killed 
by Peter Meyer, a furrier. The 'brother, relatives and kindred' enter into 
a treaty, by which Peter Meyer is to pay 176 marks for the use and support 
of the deceased's young children, and to give the widow a good mantle worth 
6 marks. He is therewith to be quit of all liability for further wergild 4 . 



1 Ib., p. 14 17, 1562 (North Friesland). " Devvile Code de here gesprakenn, dat 
Je Jemen de mit deme swerde fechtenn mith deme swerde ock vmmekamen schollen." 

2 Ib., pp. 64 f. (1566), " So vorordelen wy dy nicht, sundern dine eigene daet, vnnd 
dat hillige Recht." 

Cp. also p. 147, " Die freundtshafft des Entliueden L. P. hefft sich tho keinem 
Handell oder aft'drage wollen vermoegen lathen, sondern alleine vmb ordeill vnd 
Recht Instendig gebeden" (1581); and p. 174: Bernt Magnussen killed Nickels 
Tadessen. Four of the latter's relatives demand ' life for life,' though the other side 
offer the enormous wergild of 1500 marks. 

3 Schles. Arch. Acta A. xx. No. 364. 24 May 1589, " Darmit ock disse vordrach 
desto vaster vnnd krefftiger mochte geholdenn werden : | tho solcher uthsonung, hundert 
guldenn, allhir by vnns thoerleggen." The Boyesens are a Ditmarschen family, and 
the case was first tried there (24 Ap.), but the slain man seems to have lived at 
Eckernforde. Hence perhaps the appeal to. (the town of) Schleswig. 

4 Schl. Arch. Acta C. xn. i, 94. Niss Andersen of Flensborg. " Peter Meyer zu 
behueff vnd Vnterhalt ihrer kleinen kinderlein, eines fur alle 176 mk. Lub. zuentrichten 
vnd abzutragen solle schuldig seyn...vnd anstat 6 mk. einen gueten frawen Peltz auch 
eingelifert werden... Vnd da etwas Vber verhaffend wegen ihres Sehl. Ehemanss 
vnd respective Vattern, eine manbote ins kunfftig ihnen auch solte zuerkandt werden, 
dessen wollea sie sich hietnit begeben haben, vnd solle selbiges mit ingemelter 
Summa...eingerechnet vorbleiben." 



NORTH GERMANY AND HOLLAND III 

In another case, in 1625, the guardians of the slain man's child, a girl of 
about two years old, intimate that they only accept the offer of wergild for 
the sake of their ward, because she inherits absolutely no property from her 
parents 1 . 

From the language of the Act of 1636, however, we can gather 
that there were dangers in thus inducing the kindred of the slain 
to forego wergild, for it was likely to occur to them that it would 
be more satisfactory to carry out the death-penalty on the 
slayer themselves. Hence, perhaps, the recrudescence of feuds 
which the Act deplores 2 ; and hence the re-appearance of the 
view which the Roman Church had always upheld, that as it 
is Christian to forgive, it must therefore be Christian to accept a 
reconciliation. This older tradition gradually gains ground on 
the more uncompromising Protestant attitude. 

Thus in 1625 a deed of reconciliation (unfortunately not final) 
begins " In the name of the Holy Trinity a Christian meeting 
was held... on account of a slaying 3 ," and in 1651 a treaty 
between Sylt and Hamburg families respectively is called a 
" Christian reconciliation 4 ." 

If the Protestant spirit among the people themselves could 



1 Schl. Arch. Acta A. xx. No. 364. (Document beginning : " Wir vntenbenamte 
Vormunderen des Sehligen mans Claus.") 

2 Thus in 1600 the brother and kinsmen of Hans Bade, whom Heinrich Lass and 
Heinrich Brammert slay, publicly declare that if the slayers put so much as a foot on 
the territory of Wulf von Alefeldt, on which the Bades live, they will never return 
alive to their own house. And one of the slain man's kinsmen, who lives, like the 
slayers, on ducal territory, goes about with a gun, trying to shoot Heinrich Lass. 
Acta A. xx. No. 364, 2 Jan. and 9 June. 

8 Schles. Arch. Acta C. xn. i, No. 94. The father, mother, mother's brother and 
father's brother's sons of the slain man will, after due consideration, accept recon- 
ciliation, if it should prove that the slayer, Jacob Schmidt, is sufficiently well-to-do to 
produce and pay 75 Liibeck marks. The reference to the Trinity was probably pre- 
Protestant and traditional : it also occurs in a similar document in 1634 (Schl. Arch. 
Acta A. xx. No. 364 : a reconciliation between persons from Apenrade, Sonderborg 
and elsewhere). 

4 Schl. Arch. Acta A. XX. No. 737. But it is only in consideration of the 
expenses (unkosten) that the kindred of the slain consent to the ' Christlichen 
Reconciliation.' 

In a case from 1632 the kindred of the slain declare that they have forgiven the 
slayer his deed "out of Christian pity." Schl. Arch. Acta A. xx. No. 393. 12 Dec. 
1632. 



112 NORTH GERMANY AND HOLLAND 

do no more than this, it is not to be expected that the wergild 
custom would yield rapidly to legislation imposed from above. 
The Recess of 1558 prescribed a death-penalty for all slay ings 
except those committed in self-defence. The enormous number 
of deaths by violence that occurred in the next century and a 
half can hardly all come under this head, and indeed very often 
there is scarcely any attempt to plead self-defence. The efforts 
of the slayer's kin are all directed towards negotiations with the 
kindred of the slain man, and if these are satisfactory they 
can face the authorities with comparative equanimity. Thus in 
1615 a wife pleads to the Duke for pardon for her husband 
" in gracious consideration of the fact that it will not be impugned 
by the kinsmen of the deceased 1 ." In another case the treaty 
with the kindred of the slain is conditional on the Duke's 
approval. Nis Matzen has killed a man. The two families 
conclude a treaty, in which Nis Matzen and his whole kindred 
are to give the brother and kinsmen of the slain 160 Liibeck 
marks ; in exchange for which the latter are to give the slayer 
"a sure safe-conduct in and out of our territory... always 
supposing that His Grace the Duke will give pardon and safe- 
conduct. And if however the said Nis Matzen should obtain no 
safe-conduct from the Duke, all this treaty shall be quite void 
and invalid 2 ." 

In another case the slayer pleads for pardon from the Duke 
" in gracious consideration of the fact that the kinsmen of the slain 
man have offered that as soon as I have gained peace from Your 
Grace, they will allow me to meet them and will be reconciled 
with me 3 ." 



1 Schl. Arch. Acta A. xx. 364. Anna Jans Weberen zur Oldenswort pleads : " In 
gnediger betrachtung dasselbe von des entleibten freunden nicht wird angefochten 
werden." 

3 Schl. Arch. Acta A. xx. No. 364. 1634, 6 Oct. See also another document 
in same collection : Peter Bennck the District Sheriff witnesses a reconciliation 
pardoning the slayer, Jes Iverssen, on condition that the Duke will also pardon him 
so ferne dat F. G....vorgeuen will. 

3 Ib., 13 Ap. 1635 (Schluxharde) : Assmus Kallissen has slain Peter Hock. " In 
gnadigen erwegungh, dass sich dess entleibten freunde erboten, dass sobalt ich mit 
E. F. G. gnadig versohnet, sie sich auch finden lassen, vnd mitt mihr verdragen 
wollen." 



NORTH GERMANY AND HOLLAND 113 

It is curious to find the Duke himself demanding to see the 
reconciliation-deed before he will pardon a slayer. Thus in 1635 
he orders enquiries to be made among all the relatives and 
friends of the slain Jacob Stroh, as to whether the slayer Hans 
Schnor has come to terms with them 1 . In reply the Duke 
receives two documents, one from the slain man's brother, 
Joachim Stroh, which declares that he and his relatives are 
satisfied 2 , and the other the orfejde-deed or " schein " required by 
the Duke : 

14 Dec. " We... the brothers, relatives and friends of the slain Jacob Stroh, 
herewith publicly acknowledge that : Because we have seen, that the slayer 
Hans Schnor regretted from the bottom of his heart the deed he committed, 
we, on our own behalf and that of our heirs, friends and relatives, none 
excepted, have concluded, thoroughly and entirely and satisfactorily, a 
friendly and well-meaning reconciliation with him. ...In proof whereof we 
brothers and friends, in default of writing, have signed this with our inherited 
marks : Jochim Strohe jun. the brother of the slain. Jochim Strohe sen. 
the father's brother of the slain. Jacob Strohe the father's brother of the 
slain. Heinrich Strohe the father's 3 brother. Marx Strohe the brother of 
the slain. Heinrich Steffens the brother-in-law of the slain. Jiirgen Strohe 
the father's brother of the slain 4 ." Here the only excuse of the slayer appears 
to be that he repents his deed. 

Even the Act passed by the Schleswig Landtag in 1636, 
refusing all validity to inter-family treaties (except where the 
slaying had been committed in self-defence), does not seem to 



1 Ib., 14 Dec. 1635. 2 Ib., 27 Nov. 3 Veters (?). 

4 Ib., 14 Dec. " Wir...des entleibten Jacob Strohen Brudere, Anverwanten vnd 
Freunde bekennen hiemit offentlicb. : well wir gesehen, das dem Todtschlager Hanss 
Schnoren seine begangene thatt von grundt seines hertzen Leidt gewesen, dass wir 
vns mil Ihme vor Vnss, Vnsere Erben, Freunden vnd Verwanten niemandt ausge- 
nommen gantz vnd gahr zum grunde freundtl. guthl. vnd wohl Vortragen...Vhrkundlich 
haben wir Breeder vnd Freunde in manglung des schreibens, dieses mit Vnsern 
angebornen mercke vnterzeichnet...J. Jochim Strohe des Entleibten Brueder. 
Ol. Jochim Strohe des Entleibten Vaters Brueder, Jacob Strohe des Entleibten Vaters 
Brueder, Heinrich Strohe des Entleibten Veters (?) Brueder Marx Strohe des Entleibten 
Brueder Heinrich Steffens den(!) Entleibten Schweger, Jurgen Strohe des Entl. 
Vaters Brueder." 

In 1632 the Duke receives an answer to a similar query he has made with regard 
to another slayer, Hans Harder, and the " schein," signed by 9 relatives, is forwarded 
to him. Schl. Arch. Acta A. XX. No. 393, Dec. 12 and 13, 1632 (letter from Steffen 
Henningck). Here also the case is not one of self-defence, the only plea put forward 
is that the slaying was committed in a brawl, not deliberately. 

p. 8 



114 NORTH GERMANY AND HOLLAND 

have convinced the Schleswigers of the justice of a death- 
punishment except at the wish of the kinsmen of the slain ; for 
in 1646 a slayer seeking pardon pleads extenuating circumstances 
to the Duke : " All this the slain man's parents and friends have 
been well aware of, and for that reason have gladly come to 
terms with me and accepted wergild from me, and wished to 
grant me peace, and therefore have themselves pleaded with your 
gracious Highness 1 ." 

In 1651 a treaty is made between two kindreds from the 
island of Sylt and Hamburg respectively, in which the injured 
kindred promises to apply for pardon for the slayer from the 
Duke 2 . We find instances of such treaties up to i/oo 3 . 

If the kindreds could make such a good fight against adverse 
influences from without, it is not surprising that we find them 
far less disintegrated in the i/th century than was the case in 
Denmark a century earlier. 

On the slayer's side as well as on that of the slain, we 
sometimes find evidence of a considerable solidarity. In 
Flensborg in 1581 the "kinsmen, brothers-in-law, brothers and 
entire kindred " offer wergild 4 . The "entire kindred " may not 
mean much, but some very much more definite evidence for 
wergild-solidarity is forthcoming. In a case of manslaughter, 
and subsequent wergild, which came before the local court of 



1 Sch. Arch. A. xx. No. 604 (Wilhelm Berckmans, May 24): " Solches alles haben 
des Todten Eltern vnd freunde woll gewest, derohalben sich gern mit mir Verglichen 
die buese genommen mir den frieden gunnen wollen, vnd desswegen selbsten bey 
E. hochfurstl. G. fur mir gebetten." 

2 Schles. Arch, Acta A. xx. No. 737. 17 May (Poul Steveken and Marten 
Jenssen). 

8 In 1665 we find the mother of a slayer pleading to the Duke for his pardon, 
showing that she has made a friendly treaty with the kinsmen of the slain ( Schl. Arch. 
Acta A. xx. No. 364, H. Priez and J. Selmer). Even in 1692, though the family of 
the slain man does not venture to conclude a treaty before the case is judged, a signed 
deed is produced in Court in which they declare that they are inclined for a recon- 
ciliation with the slayer, for the consideration of 200 marks. In this case the public 
prosecutor sues (Acta C. vi. r, No. 102 c). So also in 1700, a slayer is condemned 
to death in the local court of Hvidding Herred, unless he can obtain grace from the 
Duke. He appeals to the Duke, and at the same time offers to seek a reconciliation 
with the kinsmen of the slain (Stemann, op. cit. p. 125, No. 152). 

4 Schl. Arch. Roedeboeck, Acta C. xix. i, No. 30, p. 147. (Vorwandtte, 
Schwegere, Broedere vnnd gantze Frundtschop.) 



NORTH GERMANY AND HOLLAND 115 

Hvidding Herred in 1635, a deed of witness, drawn up at the 
Thing, declares " that Laures Perss of Bircheleff first cousin, Poul 
Bertels og Hans Jess of Gansager in the third degree of relation- 
ship, Anders Lauesen of Normsted in the third degree, Hans 
Pers of Bircheleff as of the fourth degree, stood here to-day 
before the Thing-Court and consented and agreed to pay 
compensation with Lass Tr^gelsen in the wergild and additional 
gift which he is to pay for the unfortunate manslaying he fell 
guilty of; first cousin I Rixdollar, ' Third man' 4 mk. (?), 'Fourth 
man ' 12 skillings 1 ." 

In another case, of 1669, from N^rre Rangstrup Herred, we find Iver 
Jensen acknowledging that he had promised and pledged 50 marks on behalf 
of Niels Michelsen to Niss Bundsen, as satisfaction {Feyring) for the slaying 
of Niss Bundsen's brother, because he was related to Niels Michelsen, the 
slayer, in the third degree 2 . 

In another case, of 1679, ne Matz Hakke appears on behalf of the slayer, 
and produces a deed signed by five other kinsmen, empowering him to act 
on their behalf. He declares that " he stands before the Court in the name 
of all Jiirgen Jurgensen Arnkiel's (the slayer's) friends and blood-relations, 
and offers to give an honourable and reputable wergild to the widow, children 
and friends of the deceased 3 ." 

But it is not only the actual wergild which the kinsmen help 

1 Stemann, Schl. Rechts- und Gerichtsverfassung im 17* Jhdt (1855), p. 64. 
Hvidding Herred No. i, 19 Jan. 1635 : "At Lauress Perss i Bircheleff S^dschindbarn, 
Poul Bertelss og Hans Jess i Gansager Tridie Mand, Anders Lauesen i Normsted 
Tridie Mand, Hans Perss i Bircheleff som Fierde Mand de stod her idag for Tings- 
dohm og bevilget og samtete at bjrfde med Lass Tr^gelsen i den Bod og Minde som 
hand schall udgiffue for den ul^kkelig manddrab hand paakom, S^dschindbarn i 
Rixdr. Tridie man 4 [Mk.?] Fjerde mand \i szl." (For the third man Stemann 
has 4 Rixdr., which is impossible. Possibly the original had 24 szl. skillings.) 

8 The pronouns are somewhat obscure in the original, but the above must give the 
sense : ' ' Iffuer Jensen ved sin sed bekiende, at han haffde loffuett og godsagt for 
Niels Michelsen til Niss Bundsen for 50 Mk. som de schulle hafve paa Sal. Tiellof 
Pedersens Br^ders vegne for den D^dslag, Niels Michelsen paa deres S. Broder haffuer 
beganget, og blef samme Penge udlofuet til en Feyring, efterdi at hand og Iffuer 
Jensen i tredie Led med huer andre er beslegtigt." (The wergild was 400 mk.) 
Stemann, op. cit. p. 136. 

3 Schl. Arch. Acta C. xix. 5, No. 5. Hadersleben Gerichtsprotokoll * Aug. 
1679: "so stehet er hier fur gerichte im Nahmen Jiirgen Jurgensen arnkiels sambt- 
liche freunden vnd blutsverwandten und erbiehtet sich gegen des Sehl. Mannes 
Wittwenn kindern vnnd freunden ein Ehrlich vnnd reputierlich boet...zu geben." "So 
also, in 1630, Jyss Nissen's "brothers and kinsmen" offer to pay wergild for him. 
Stemann, p. 310 (Wies Harde). 

82 



Il6 NORTH GERMANY AND HOLLAND 

to pay, but also the fine to the public authorities. In one case 
the slayer has been sentenced to pay a fine of 50 Rixdollars : it 
is observed that "the slayer himself would perhaps find a 
difficulty in producing it, unless, according to the usual custom 
in these parts, his blood-relations came to his help both with this 
and with the other sum which he has to pay as additional gift, 
besides the wergild." A note at the end of the letter observes : 
" The slayer's father has freely offered to give 40 Rixdollars 1 ." 

A curious instance of the solidarity of the slayer's kindred is 
preserved in a case from N0rre Rangstrup Herred in 1670. 

J. T. (one of the slain man's kinsmen) complains in court of the expenses 
he has been put to in having the slayer executed. His kinsmen declare that 
they will do him the justice of each paying their share. The question is 
brought up again some months later, and a recalcitrant kinsman declares 
that if all the other relatives gave something towards the expense, he would 
also contribute. The slain man's nearest kinsmen have each promised 
their share, their liability being apportioned according to their degree of 
relationship 2 . 

Perhaps we can now understand why it needs such a number 
of kinsmen to urge the public authorities to execute justice, since 
the cost of the execution will fall upon them 3 . The kindred 



1 Schl. Arch. Acta A. No. 364 (Jep Petersen Matz Persen) : " Welche vielleicht 
der Thater selber beschwerlich vermochte zu entrichten, Wan Ihm seine Bluetfreunde, 
beide in dieseni, vnd anderm, so er zur feirunch oder Giorsum, Item der manbuesse, 
erlegen muess, vblichem gebrauche nach an dieser orten, nicht zu Hulffe kemen... 
P.S. 40 R. Thaler, halt des Thaters Vater sich guetwillich erbotten zu geben." 

It is probable that the contributions of the kindred were by this time entirely 
voluntary. Eckenberger, in his Klein Kort Tractdtlein van Prozessen, observes : 
" Konde averst ein Nothwehr od wadis gierning dat de Doetslag unwarings beschehen 
were, beviset werden. So betere he (the slayer) 3 mahl 18 Penninge oder Mk. und 
mehr nicht, wortho jeder Friindt geldet, und tholegt, so vele alse he uthgelavet 
hefft...." (Staatsbiirg. Mag. VI. p. 624.) 

2 Stemann, pp. 136 7. (Stemann unfortunately omits the names of the kinsmen 
who agree to pay in the first instance, nor does he even mention their number. It 
was not possible to consult his original.) " i March 1670, Eftersom J. T. tiltaler 
nogen for den Omkostning, hand haffuer giort paa S. A. Ch. at lade rette, da 
erklaerede...at de ville gj^re Ligtighed med ham, enhver deris Anpart at betale. 
14. juni. Ch. P. Suarede, dersom alle de andre Slaegtninge gaffnoget til Omkost, da 
ville hand og giffue sin Anpart dertil. N.T.'s neste Frender haflfue lovet enhver sin 
Anpart, som de efter Slagt og Byrd kunde tilkomme." 

3 In one of the 1 6th century cases in the Red Book of Flensborg, mentioned above 
(p. 1 10), the appeal to Holy Writ is made by the brothers of the slain, Paye Folquartsen 



NORTH GERMANY AND HOLLAND 1 1/ 

appear also to share the costs of the law-suit with the actual 
plaintiff, to judge by a plea sent in by the " frunde" (kinsmen) of 
Sivert Leuessen in 1605, urging that they should not be liable 
for the expenses of a (new?) law-suit against the brothers 
Veddersen, who slew their " kinsman and uncle " seventeen 
years previously 1 . 

The orfe/de-deeds afford similar evidence with regard to the 
participation of the slain man's kindred. The following deed, 
from 1610, is one of the most complete 2 : 

"Hans Chrestensen, working for Hans Simonsen of Ausgaard, has to-day 
received in all 107 Liibeck marks on account of his slain brother Peter 
Karstensen of Rohrkeer. And it is to be known that the whole sum is 120 
marks, for which a sealed deed has been given. Whereof however the 
deceased's wife has received 10 marks as a consolatory gift 3 , and the District 
Sheriff 3 marks : i.e. one mark for each third [of the wergild], according to 
the custom of the district. The brother has therefore received 107 Liibeck 
marks, in the presence of the deceased's kinsmen, Peter Jepsen of Schonby, 
Jiirgen Thomsen, Niss Hansen, Rasmus Nissen, Niss Jessen of Weibull, all 
of whom have sworn, clasping hands before the Court, that they pledge 
house and farm as a guarantee that they will satisfy and content their blood- 
relations, ; to whom the wergild rightfully belongs*, in such fashion that 
Hans Iversen [the slayer] and his wife shall never be reproached nor blamed 

and Janne Folquartsen, together with their entire kindred, to wit, Jens Feddersen, 
Jens Poensen, Paye Poensen, Broder Paysen, Rickert Taders, Tercke Hunsen, all 
domiciled in the Marsh at Dageblill in Bokingeharde, who prosecute the slayer and 
demand his execution. Similarly in the second case, where the slayer, Peder Nalle 
of Flensborg, offered compensation. " However the kindred of the deceased would 
not consent thereto, but Poppe Ludtsen his father's brother, Nis Nissen, Hans Nissen, 
Boye Rekerssen his (the deceased Andreas Nansen's) half-brothers, together with Jacob 
Shoemaker his wife's brother..., sued the said Peter Nalle before the court and com- 
plained that he had slain their cousin (fedder), brother, and brother-in-law [respec- 
tively]." They demand his execution. So also in the third case (quoted in note i, 
p. 1 10). The slain man's father, Peter Tunen of Hoge " together with his connections 
by marriage [sckwegere, sons- and brothers-in-law] and kinsmen, earnestly pray for 
nothing more than law and judgement." 

Cp. also in a case of 1620 : Grosse Gosche Odenfeyde kills Jacob Wulf's youngest 
son with a bread-knife. Jacob Wulf pleads with his "gantze Freundschaffl " for the 
slayer's execution. Schl. Arch. Acta A. xx. No. 364. 

1 Schl. Arch. Acta A. xx. No. 364 (18 Feb. 1605). 

3 Printed in Stemann, p. 188 (Slux Harde, i Dec. 1610), but without the names 
of the other kinsmen, which are however given in Statsbiirgerliche Magazin, p. 249. 

s " tho en Linrung." 

4 "dat se ere Blotfronden, so de Bote mit Recht gehoret, contenteren und 
befriedigen willen, by Verpfandung ere Huss und Hoff." 



Il8 NORTH GERMANY AND HOLLAND 

on account of the past slaying, wergild or additional gift ; but on the contrary 
receive thanks for full payment...." 

It appears from the above that the wergild is still divided 
into the third for the heir, the third for the maternal kinsmen, 
and the third for the paternal kinsmen. That this is the case is 
evidenced by the following brief notice in the Court records : 

"Peter Laurensen of Steenild has to-day acknowledged, that Rasmus 
Paulsen of Thingeleff has paid him 18 marks for the wergild due to the spear 
side on account of his deceased brother Michell Laurensen 1 ." 

Another document, from 1632, is signed by nine relatives : 

"Since an unexpected quarrel and brawl took place between Claus Hesche 
of Tugendorp and Hans Harders, so that he, Hans Harders, was killed by 
the said Claus Hesche in the said brawl (but accidentally and without 
deliberation) ; and therefore, as a result of prosecution, [ClausJ was banished 
from his property and from the land, in which banishment... he wanders to 
the present date ; we, all the under-mentioned kinsmen, hereby acknowledge 
openly and make declaration to all, that we have received sufficient satis- 
faction from the above-mentioned Claus Hesche, the slayer, on account of the 
slaying criminally committed on our kinsman, and have forgiven him the 
deed out of Christian pity, and have come to a thoroughly good understand- 
ing with him...." They sign 'with names and one mark' : Detleff Bulcke, 
Hans Delvess, Jochim Harder, Crete Harders, sister, Kla Bulken, Jochim 
Bulcke, Harder Delvess, Heinrich Wisen, Harteich Weitorp ; with the 
Provost of the Parish, Johann Gotte, as a witness 2 . 

Another document, of i652 3 , describes how Marten Jensen of the island 
Sylt was killed in the previous year by a citizen of Hamburg, Paul Steveke, 
whereupon Marten Jensen's wife, children and kindred ' not unnaturally made 



1 Stemann, p. 188-9 (Slux Harde, No. 6), June 12, 1616. 

8 Schl. Arch. Acta A. xx. No. 393 (enclosed witb a letter of Steffen Henninck 
to the Duke), 12 Dec. 1632: "Demnach zwischen Clauss Heschen zu Tuugendorp 
vndt Hanss Harderss ein vnvermutlicher Zannk vnndt schlegerey entstanden, dass er 
Hanss Harderss von gemeltem Claus Heschen | : Jedoch vnvermuthlicher weise 
vnndt ohne vorsatz : | in solchem Tumult entleibet worden, Vndt Dahero Auff 
Angestelleter Clage, seiner guter vndt des landess verwiesen, in welcher verwiesung 
er...bis dato herumb schwebet, Wir samptliche vntergenante freunde Aber, bekennen 
hirmidt offentlih vnnd thun kundt Jedermenichlih, dass wir von obberuhrten Clauss 
Heschen theters, wegen dess am vnsern Anvorwanten freuentlich begangenen nieder- 
schlagess, gnuchhafft befriediget, Ihme die that auss christlichem midtleiden vergeben, 
vndt vns midt ein Ander zugrunde vortragen haben 

Johann Gotte kirchspelsvogt Detleff Bulcke Hanss deluess Jochim Harder Crete 
Harderz. swester kla Bulken. jochim bulcke, harder deluess Hinrich Wisen, 
Harteich Weitorp." 

3 Schl. Arch. Acta A. XX. No. 737, 1652, den 17 May. 



NORTH GERMANY AND HOLLAND lip 

claims and demands on him' (the slayer), but finally, all and sundry make a 
'Christian reconciliation,' though without prejudice to the Duke's prerogatives 1 . 
Peter Tacken is to sign on behalf of the widow, his sister-in-law, because she 
cannot write, and one of the sons on behalf of his brothers and sisters, 
together with all the kinsmen present, and in the name of all the absent 
kindred. Five persons sign besides Peter Tacken, who is the Sheriff (Land- 
vogt) of Sylt. The reconciliation seems to have taken place at Eiderstedt 1 . 

That the constant reference to " the entire kindred " was not 
a mere empty formality can be deduced from the care with 
which the letters of attorney, entitling representatives to act for 
the kindred, were scanned by the opposing party. A case of 
manslaughter which came before the Hadersleben court in 1679 
gives the following details : 

"Jiirgen Nielsen Kellot appears, in accordance with the deed of attorney 
he has with him, as representative of the widow and kinsmen of the deceased 
Friedrich Nielsen of Andrup.... The deed is read out and Productu written 
thereon 2 ." The representative of the other side, Matz Hakke, then produces 
his deed of attorney, from the brothers of the slayer (Jiirgen Jiirgensen 
Arnkiel) and the other kinsmen and brothers-in-law, to wit, Jens Petersen, 
Peter Jepsen and Jess Hansen of Brandsoe. Jtirgen Nielsen asks for a copy 
of the deed, which is granted to him. At the next sitting of the Court, on 
August 9, an objection is made to Jiirgen Nielsen's deed of attorney. "Jiirgen 
Nielsen Kellot answers that. ..since the deed was drawn up by the Town 
Clerk himself, in the presence of the near friends and kinsmen. ..he supposes 
that the same will continue to be valid 3 ." 

But the most startling evidence of the participation of the 
slain man's kindred is furnished by one of the latest cases of 
wergild which has as yet come to light. Thanks to the lucky 
accident that in the year 1693 the town clerk of Hadersleben, 

1 " obbesagte Marten Jensenss frauwe kinder undt gesampte Siepschafft sampt 
vndt sonderss fur sich vndt Ihre Erben vndt manniglich an Eyderstat mit Handt vndt 
Mundt versprochen diese beschehene Verzeihungh nimmer zu bestreiten. . . Jedoch in dem 
allem der hochfurstl. Obrikeit Herlikeit...hiemit ohnvergriefenn vndt ohne Intragh...." 

2 Sch'.. Arch. Acta C. XIX. No. 5. Hadersleben Gerichts Protocoll. 2 Aug. 
1679. "Jiirgen Nielsen Kellot erscheinet laut habender vollmacht nomine sehl. friedrich 
Nielsen in andrup Wittwe v. freiinden....Die vollmacht is verlesen v. Productu druff 
geschrieben. ...Matz hakke erscheinet nomine Jiirgen Jiirgensen auss Tollstede brudere, 
Crihstoffer arnkiehl, Rasmus Jiirgensen arnkiehl und der anderen befreiindten vnd 
Schwager alss Jenss Petersen, Peter Jepsen vnnd Jiss hansen von Brandsoe produciert 
Vollmacht. Jiirgen Nielsen begehret copiaro der vollmacht so ihm indulgieret." 

3 9 Aug. " Jurgen Nielsen Kellot antwortet weil...die Vollmacht von dem...Stadt 
Secretario selbst in gegenwart der nahe(n) freunde v. verwandten vffgesetzet...so meinet 
er dass dieselbe bey macht...verbleiben werde." 



I2O NORTH GERMANY AND HOLLAND 

who reported the cases, had a marked interest in the affairs 
of his neighbours, and in financial questions (an interest which is 
shown almost on every page as long as his handwriting continues) 
the following detailed account of the various shares of wergild 
has come down to us 1 : 

"28 Jan., 1693, Niss Iferssen of Friedtstedt appeared as 
attorney for Fru Magdalen Classen and her son Hans Classen 
and produces a treaty with the surviving friends of the deceased 
Marren Oluf on account of the wergild, which sum, in accordance 
with the said treaty, amounts to 154 mk. And the kinsmen 
have declared once more that they will abide by the treaty, with 
the exception of Soren Sorensen of Falstrup, who asks for a copy 
of the verdict pronounced by the doomsmen (Sandmanner), but 
will not participate in these moneys. Niss Ifersen has however 
deposited the moneys, sealed, in court, and the day for the 
distribution of the moneys is fixed for the i8th of Feb. in this 
year, on which date those who are stated to be kinsmen, who 
have once again declared in Court [that they intend] to abide by 
this contract, and make no further claims, and who are also in 
agreement with each other as to the degrees of relationship, shall 
receive the moneys without further citation. 

Specification of those who are declared to be kinsmen of the 
deceased Marren Oluf, and in which degree each is concerned, as 
follows : 

Of the 154 mark agreed upon 4 are subtracted for costs 
there remain 150 mark. 

Thereof 4 persons in the 2nd degree receive each 8 M. = 32 M. 
20 3^ 4 M. = 80 M. 

19 4th 2 M. = 38 M. 

150 M. 

Gradus. 
234 
Bertel Hansen of Hjemdrup has 3 sons: : 



Laue 

Andreas 

Soren 



1 For a transcript of the original see Appendix II. No. 6. 



NORTH GERMANY AND HOLLAND 121 

Gradus 
234 

Sb'ren Bertelsen's son, by name Bertelt ... 
David Kusser of Sommerstedt has 4 sons : : 



the first 
the second 
the third 
the fourth 



Three sons' children : 



first 
second 



third 

And so it goes on until it has reckoned up 44 persons who 
are to receive their due share of wergild. The entry : " Trouelss 
Jensen... has two sons, who participate on account of their 
mother " is interesting as showing that cognatic relatives shared 
equally in the wergild, as prescribed in the Jutish law. Such of 
the places mentioned as are easily identifiable 1 lie within a radius 
of about ten miles round Hadersleben, but some of them are at a 
considerably greater distance from each other. 

It is not to be supposed that the relatives invariably 
participated to such an extent at the end of the seventeenth 
century : in fact, as we have already seen 2 , cases are extant where 
only the widow and children benefit, and there is an interesting 
case from 1669 in which the widow, six brothers, and the son of 
the slain each receive 50 marks, the total of the wergild being 
400 marks which leaves nothing for other relatives. A dispute 
having arisen in this case, the arbitrators award the son 125 
marks, plus interest for 15 years, 133 marks 5 skillings in all*. 
We must suppose that the brothers took more than their share 
while their nephew was an infant, and that he eventually claimed 
his rightful third, as heir, and was awarded the interest of it 
as well. But evidently no one more distant than the brothers 



1 Friedtstede, Falstrup, Sommerstedt, Tystrup, Stepping, FaurwraJarup.Seggelund. 

- Supra, pp. no f. 

8 Stemann, p. 136. N^rre Rangstrup Herred, No. 10. 1669, 30 Nov. "4 Mend 
med Herritzfogden lignet og beregnet den Mandbod efter S. Tiellof Pedersen, da 
tilkommer Peder Tiellosen af ber^rte Boed, som var 400 mk., deraf 133 mk. 5 sk. og 
deraf resterende Rente udi 15 Aar. 8 mk. 5 sk. ialt 175 mk." 



122 NORTH GERMANY AND HOLLAND 

participated in this case. We note that the large share taken by 
the widow appears to be unquestioned by the arbitrators, and in 
fact, as in Denmark, we find mothers and sisters also participating 
in the wergild 1 . 

In the matter of the amount of wergild, though the sum varies 
very much 2 , the actual wergild laid down in the Jutish law, 
3 times 18 marks of coined money, is more often paid than 
in Denmark, and it is frequently referred to as being the legal 
wergild 3 . We also find the 90 Gulden which was the legal 
wergild for Nordstrand being paid in that district*. 

It may be observed that we have made no mention of the 
nobles in the foregoing. The reason is that the nobility of 
Schleswig cannot be treated separately from the Holstein 
nobility (from whom in fact they sprang) 5 , their properties and 
families being scattered over both duchies. 

Falck, in commenting upon Bliiting's "Observatio 10 : von 
mancherlei Todtschlagen im Jiitschen Lov " notes with surprise 

1 See above, p. 1 1 8, Claus Hesche and Hans Harders case ; and cp. also 
Sekl. Arch. Acta C. xn. i, No. 94, Gotschalk von Ahlefeldt's letter requesting the 
authorities of Flensborg to see that the mother and relatives of Christian Jensen, 
who was killed by the son of the Pastor at Bredstede, receive satisfaction: "das 
des Entleibten Mutter und Vorwanten Befridigett warden" (1599). Cp. also the 
curious case in Schl. Arch. Acta C. xm. No. 61. Claus, Jiirgen Peter and Johann 
Ratken prosecute the two brothers Royen for killing Hans Ratken. Hans was 
over 70 years of age, and his body showed no signs of violent treatment. The 
Sandleute observe that the only witnesses of the alleged slaying are Hans' uncles, son, 
daughter, step-son of the daughter and brother's son : i.e. all persons who are 
pecuniarily interested in proving it to be a slaying, as participating in wergild (Vnd die 
Manbuesse nach Lohebuchs Rechtt mittgewertich), and dismiss the suit (Arensharde, 
1626-27). 

- The largest that I have noted among non-nobles appears to be 900 mk., Schl. 
Arch. Acta A. xx. No. 364: 1636, Mar. 15. "gedachte Hans Jacobsen [the slayer] 
schall des entliweden Fruwen, kinderen, Broderen Vnd Samplichen Bloedefreunden, 
Eins vor alle, vtegen feyringh Bleed wiede vnde manbotte geuen, Negenn hundert 
marck Lubisch." But this seems to include fines (blodwide). In Eckernforde in 
1647 the legal wergild is declared to be 60 Liibeck marks (Stemann, op. cit. p. 245). 

3 Schl. Arch. Acta A. XX. No. 364 (14 June 1601) Pawell Jiirgensen has killed 
Peter Hennings. The latter's kinsmen demand ' ein Vbermessiges ' but are to content 
themselves, ' vermilge Lohebuchs Recht,' with thrice 18 marks. Cp. also Acta C. 
XIX. 5, No. 5, Hadersleben Court, 1679, ^ Sept. and Stemann, pp. 179, 193, 220, 228. 

4 Schl. Arch. Acta A. xx. No. 364, 1626, June 26 : Jans Hansen " zue ausszahlungh 
90 gulden gewohnlichen Manbuess" (in Nordstrand). 

8 Cp. Sering: Erbrecht und Agrarverfassung in Schl. H. (1908), pp. 344-5. 



NORTH GERMANY AND HOLLAND 123 

that his author speaks of the Jutish law as still perfectly valid in 
criminal cases. BlUting was born in 1570, but his annotations 
to the Jutish law were probably written about 1643. Falck 
observes that it is known that the penal sections of the Jutish 
law had ceased to be valid in the towns of Schleswig by the end 
of the i6th century, and he demands, full of doubt : " Sollte denn 
die Praxis in den Hardesgerichten von der stadtischen Praxis so 
ganz verschieden seyn 1 ? " Stemann, in his selection from the 
Court records of the various rural districts (Hardesgertchte], has 
produced much evidence for the persistence of wergild customs 
in the rural districts until the end of the i/th century; and 
the case just quoted from Hadersleben gives good reason 
for supposing that wergild, and its distribution among the 
kindred of the slain, lasted quite as long in some Schleswig 
towns as in the country. The town of Schleswig itself, or rather 
its Cathedral Chapter, seems to yield as late as 1692 to the 
prevailing custom of the country in considering that the existence 
of a treaty with the injured kindred made it awkward to condemn 
a slayer to death 2 . 

The oath of compurgation with oath-helpers of the kindred is 
known in Schleswig, but appears to last longest in the districts 
of North Friesland. In this locality it appears in the charter of 
1466 3 , and in actual cases from 1439* to the first part of the 
1 7th century. Thus in 1601 the plaintiff in a case of slander is 
to swear to the truth of his accusation with eleven of his blood- 
relations 5 . In Slux Harde, also, we come across a case of 
this oath as late as 1618 : "Peter Hansen has sworn his Kjjns 
Eedt with his blood-relations, at the proper time of day, himself 
and eleven others 6 ." In the town of Schleswig, however, this form 



1 N. Falck: Neues Staatsbiirgerliches Magazin, III. p. 212. 

2 Schl. Arch. Acta C. vi. i, No. 102= (an answer of Christian V. to the Schles. 
Domkapitel). 

8 Richthofen, Fr. Rq. p. 576, 10. In 1558 we find mention of an oath of 
8 kinsmen, Verdaringe des Landrechtes, 64, Petreus, p. 158. 

4 Fr. Rq. p. 570, No. 2. 5 Stemann, Geschichte, Theil n. p. 324, No. 213. 

6 Stemann, Schl. Rechts- und Gerichtsverfassung, p. 189 (No. 7): "Peter Hansen 
sinen Ki^ns-Eedt...mit sinen Blotfruenden tho rechter Tidt Dages siilf 12 nha 
Landesrechte hefft geleistet." 



124 NORTH GERMANY AND HOLLAND 

of oath was no longer in use in the i/th century, for in 1605, 
in replying to a question asked by the authorities of North 
Friesland with regard to a certain case, the magistracy of 
Schleswig reply that a 12-men's oath is not customary in that 
town 1 . In 1609 we are tld that the opposing party refuse 
to accept the sole oath of their opponent, but demand a twelve- 
men's oath. The mayor and council of Schleswig thereupon 
declare that this form of oath was " abrogated many years ago 
by their forefathers 2 " probably at the time of the Reformation. 
An interesting case of the arbitration of common kinsmen 
(samfngnder) is given by Stemann in his account of the Andersen 
family in Karr Harde. 

The disputing parties are Mette Andersen and Anders Momsen. The 
twelve kinsmen should be related to both parties, but their efforts at arbitra- 
tion result in a majority report, for only eight sign and " the other 4 of 
Anders Momsen's samptfriinde have separated themselves from us 3 ." 

In another lawsuit about inheritance, in 1593, when Christoph 
von Alefeldt sues the heirs of his wife in the High Court of 
Schleswig, he is ordered to produce 6 Samfreunde*. 

The kindred in Schleswig was thus able to offer a passive 
but effective resistance to the enactments of 1558 and 1636, 
which should have limited wergild to so few cases that the custom 
would soon have become obsolete. We have seen how the 
people evaded, and popular opinion forced the Duke to override, 
the new clause forbidding treaties between the kindreds, and how 
the slayer did not always even take the trouble to keep up 
the legal fiction that his act was committed in self-defence. It 
seems safe to say that up to 1700 relatives as distant as third 
cousins frequently though not habitually participated both in the 
liability for wergild and in the receipt of it. It was a more 
insidious enemy than officially promulgated edicts to which the 



1 Stemann, Geschichte, Th. n. p. 333, No. 221. * Ib. p. 335, No. 223. 

8 V. Stemann : Die Familie Andersen in der Karrharde, Slesvigske Proviiidsial- 
efterretninger . Ny Rsekke. C. Juel og F. Knudsen, Haderslev. Bd III (1862), 
p. 280 (Urk. 13). 

4 Brinkmann, Aus dent deutschen Rcchtsleben (Kiel, 1862), p. 258. Other references 
to samptfriinde: Schl. Arch, Acta C. XII. i, No. 94...Uber Hans Trotzen zu Husum... 
veriibte Gewaltat, 1563-90. 



NORTH GERMANY AND HOLLAND 125 

old customs finally yielded. At no time were the penal clauses 
of the German code known as the Caroline imposed by Duke or 
Parliament on the country. Gradually, however, its ideas 
permeated the lawyer and official classes, and the old Jutish 
penal law was gradually forgotten and superseded, though 
theoretically, except for the limitations imposed by the Act of 
1636, it remained valid in many parts of Schleswig, until the first 
of January, 1900. It would be difficult to find a better example 
than Schleswig of the dangers of trusting to the laws technically 
in force for a picture of the conditions of any given period. 

B. HOLSTEIN. 

We have now covered the specifically Scandinavian territory, 
which was to be our main task, and are faced with the extra- 
ordinarily complex conditions of North Germany. For the 
cogent reasons indicated in the Introduction, it is impossible for 
us to give more than a series of very superficial sketches of these 
conditions in general. We have however treated Ditmarschen 
more fully, as offering, in the Slachte, an interesting example 
of agnatic organization, unique on Teutonic territory. 

i. Ditmarschen. 

The history of Ditmarschen is so sharply divided from that 
of Holstein, with which, as with its other neighbours, the little 
republic was usually on bad terms, that it would be necessary 
for that reason alone to treat it apart from the rest of the Duchy, 
though from an ethnological point of view it is very similar, the 
population being of Saxon origin, though perhaps with a Frisian 
admixture 1 . But the peculiar constitution of Ditmarschen would 
in any case render it advisable to treat it separately. 

The solidarity of the kindred has left its mark on every sphere 
of Ditmarschen life. It was the kindreds, or Slachte^, which in 
the roth and nth centuries built the great dykes to prevent the 
sea flooding the marsh land, and so gained some of the richest 
lands in the peninsula. It was the Slachte which governed 
Ditmarschen until 1447, when a supreme authority, the College 
of the Forty- Eight, was established. The slachte could enter 

1 Sering, op. cit. p. 22. * Also written slaht, schlachte, etc. 



126 NORTH GERMANY AND HOLLAND 

upon commercial enterprises 1 , and could not only form alliances 
among themselves, but conclude treaties with their foreign 
enemies 2 . Such clearly defined groups must obviously have been 
organized on an agnatic basis, and this certainly seems to have 
been the case 8 . It is in this point that the clans of Ditmarschen 
are so unlike the shifting kindreds which we find elsewhere on 
Teutonic territory. There are however other differences. Thus 
a Ditmarschen slachte resembles other agnatic clans in the fact 
that the bond of kindred was extended almost indefinitely, 
instead of terminating with fourth cousins, as in Denmark. 
A powerful slachte was often a confederation of a number of 
minor groups of kindred. Besides this, artificial relationship 
was resorted to, and strangers were admitted as ' cousins.' The 
best description of the internal organization of the slacJite is 
given by the chronicler Neocorus, although he wrote when their 
day was over. Neocorus, who became a pastor in 1 590, says : 

"There are in every parish (Carspel, Kirchspiel) splendid old kindreds 
(Geschlechter) of unimaginable antiquity ; adorned because of their up- 
rightness and noble deeds with magnificent blazons and coats-of-arms, 
which are divided among themselves into special brodertembte or khifte, and 
have had great alliances among themselves, that no member should forsake 
the other, even the meanest and poorest, if any one wished to encroach upon 
him or treat him unjustly. Now in case any one from foreign lands desired 
to settle down in a parish and to be connected with and enter a Geschlecht, 
if such a one brought with him honest and blameless witness of his honour- 
able birth, origin, and habits of life... they would adopt him as a 'cousin 1 of 
the Geschlecht, and regard him not less than their nearest-born kin,. ..and all 
fighting men of the whole Geschlecht would on his account have risked life 
and limb or gone to war 4 ." 

1 Ldrecht, n. xcii: " Vortmer so mach en islik slachte, kluft edder brodortemede 
offte gilde ere pandinge hebben...." (A. L. J. Michelsen, Sammhmg altdithmarscher 
Rechtsqucllen.) Altona 1842. Cp. pp. 263-4 : a law-suit between a village and the 
Boldersmannen.) 

* See Michelsen's Urkundenbuck (Altona 1834), pp. 18 (1316), 28-9 (1384), etc. 

3 Being agnatic, the Ditmarschen slachte cannot have been in the least analogous 
to the North German Ferhte, Fange or achtendeele (the 8 branches of descendants of 
great-great-grandparents), as has sometimes been assumed. These latter are based on 
the equal recognition of agnates and cognates, of father's kindred and mother's kindred. 

4 tfeocorus, Chronik, ed. Dahlmann (Kiel, 1827), pp. 206 f. : "It sin in Idem 
Carspelen herliche olde Geschlechte, so van undenklichen Jahren hero, umme ehrer 
Uprichticheit unnd ehrlichen Daden willen, mit herlichen schonen Herteken unnd 
Wapen geziret, de under sich in sonderliche Brodertembte edder kluffte gedelet unde 



NORTH GERMANY AND HOLLAND 1 27 

It was indeed a very closely-knit community which the 
stranger was thus privileged to enter. If he had a quarrel with 
a member of another slachte, he could not compose it except 
with the consent of his whole slachte, with all its klufte 1 . The 
laws suggest that the interests of the slachte, the corporate 
kindred, were paramount, and the independence of the in- 
dividual very much subordinated to them. Even the wergild 
laws show traces of this tendency. Thus it appears in the 
earlier law (of 1447) that the individual is primarily responsible 
for wergild, if he has committed a slaying, and if he has in- 
sufficient means to meet the demand, it is not the slachte which 
becomes responsible, but only his immediate kinsmen 2 . Yet if 
a member of a slachte is slain, part of the wergild falls to the 
kindred 3 . In the later law of 1539, i.e. after the supreme 
authority had been taken from the hands of the slachte for nearly 
a hundred years, the slachte may become liable for wergild if the 
slayer cannot pay ; but it still has the choice of repudiating the 
culprit if he cannot pay the fine to the authorities 4 . The dis- 



under sick grote Vorbuntnisse gehatt, de eine dem anderen, ock den Allergeringsten 
unde Armesten nicht tho vorlaten, so ehn Jemant vorunrechten unde belastigen wolde. 
Im Falle nun einer uth frombden Landen sich in einem Carspel neddergelaten unnd 
in ein Geschlechte sich tho begeven unde to befrunden begeret, wen desulve ehrliche, 
underdelhaffte Tuchnisse siner ehrlichen Gebort, Herkamendes, Handels unde 
Wandelss gebracht, ...hebben se densulven vor einen Vedderen dess Geschlechtes 
angehamen, ock nicht geringer geachtet, alss ehren negesten angebamen Frundt,... 
und alle wehrhaffte Manschop des ganzen Geschlechtes wol hedden sinethalven sich in 
gefahr Livess unnd Levendes gestoken unnd tho Felde getagen. " 

1 The Reformers enacted that the individual should be free to compose differences 
with members of another slachte, but still forbid him to appeal to public authority in 
a dispute with a member of his own slachte. In the latter case the matter is to be 
submitted to the arbitration of four members of the slachte. A. Viethen, Beschreibung 
und Gesch. des Landes Dithmarschen (Hamburg, 1733), p. 160. 

2 Ldrecht, r. 72: " Item eft dar en man enen man dale sloghe, vnde he dat gud 
nicht en hedde, dar he ene mede betalen konde, so schullen sine neghesten to tasten 
vnde betalen den man...." 

3 Ldrecht, I. 79: " Vortmer efft dar eyn man geslaghen worde, so schal de bane 
bliuen by der s\vert siden, vnde dat andere manghelt dar id van rechte bliuen schal." 
Cp. Brunner, Sippe und Wergeld (Zs. der Sav. Stift. in.), p. 24. 

4 n. xxx. "Vortmer offt dar en man enen dale sloghe vnde he so vele nicht en 
hadcle, dat he sin antal holden konde, so schal dat slachte allike wol den man betalen, 
vnde den hantdadigen moghen se ouergeuen vor den vrede."...(In this event the culprit 
is executed, see II. xxxi.) 



128 NORTH GERMANY AND HOLLAND 

tribution of wergild is thus described : " Further, if a man be slain, 
the bane remains [among the immediate kindred?] on the agnatic 
side, and the other wergild shall be divided according to the law 
of the slackte*" 

Moreover if debts are to be taken out of the wergild of a 
slain man, the bane, the share of the near relatives, is first 
sacrificed, and only secondarily th'e rest of the wergild, if the 
bane should not suffice 2 . 

The laws evidently regard the details of wergild distribution 
as a matter for the slachte concerned, and vouchsafe no further 
direct information beyond the statement that the usual wergild 
was 100 marks 3 . We can, however, deduce from the following 
clause that the wergild was divided between the slachte, kluft and 
brodortemede : 

" If a man die, and it is claimed that he had received wergild due to his 
slachte, kluft, or brodertemede, and if he leaves a son, the son shall pay those 
goods to his slachte, kluft or lemede. If the goods should have fallen to the 
wife's kindred (after the division of the property) the slachte, kluft or broder- 
temede must each claim the part due to them with a nemede (oath of 9 men) 4 ." 

Another matter in which the bond of kindred must have 
frequently been somewhat irksome is the system of corporate 
oath-taking, which was carried to great lengths. The ordinary 
'nemede' consisted of nine persons of the oath-taker's slachte, 
besides himself. They were chosen by the opponent, and the 
oath-taker could reject five of them 5 . A 'full oath' consisted 
of twelve persons. The law of 1447 provided that anyone 
accusing another of manslaughter must produce a nemede 
(9 oath-helpers) from his own slachte for the first oath, and six 

1 II. xli. " Vortmer efft dar en man geslagen worde, so schal de bane bliuen by 
der swertsiden, vnde dat ander mangheld schollen se delen na eres slachtes rechticheit." 

2 Ldrecht n. xl. "Vortmer efft dar en man geslagen worde vnde so vele 
schuldich were, dat me de schult nicht betalen konde van sinen acker vnde gude, so 
schalme de schult betalen van der bane, offt me dar nicht mede betalen konde, so 
schalme dat nemen vt dem ganzen manghelde." The earlier law only prescribes that 
the debt shall be paid out of the wergild ' van sineme bitteren dode. ' (Ldrecht I. 88.) 

3 Ldrecht I. 70. 

* I. 163. "Vortmer efft en man wech storue unde worde beschuldiget, dat he 
scholde uppe nomen hebben sines slahtes manghelt effte kluft effte broder themede," 
etc. Cp. li. c. clxxx. 

5 I. 113- 



NORTH GERMANY AND HOLLAND 129 

out of the twelve in twenty-nine supplementary ' full oaths ' (with 
12 oath-helpers). All these should be different persons if the 
slachte has sufficient, if not, the same persons can act in several 
' full oaths 1 .' The remaining six persons of each ' full oath' are 
taken from slachte which are not concerned in the matter. 

That one slachte could be expected to produce as many as 
174 males of an age to act in this capacity may seem surprising 
until we read in Neocorus' Chronicle that the clan of the 
Woldersmen, counting some minor branches, used to be able to 
bring 509 men into the field 2 . 

The obligation to commit perjury in this way, and on so 
large a scale, was the chief objection made by the Protestants 
against the whole clan system, and must have been an intolerable 
tyranny 3 . 

In general, the tendency of the slachte seems to have been 
on the one hand to encroach more and more on the rights of the 
individual or family though this tendency was to a certain 
extent checked by the efforts of the Forty-Eight 4 , and on the 
other, to repudiate the responsibility of any acts of the individual 
that might be inconvenient. For example, in 1323, in the treaty 
of Ditmarschen with Gerhard the Great, it is agreed that the kin 
shall pay for any theft committed by one of their number who 
then evades capture 5 . But in the later law we find the clause : 
" Henceforth a thief may not steal the property of his kinsmen 6 " 
i.e. the kindred was not to be liable to indemnify the person 
whose goods were stolen. 

It was not until their acceptance of Protestantism that the 
Ditmarschers began to conceive of individual responsibility. 



1 I- 74> 76: see note, p. 287. 2 Neocorus, ed. Dahlmann, I. p. 244. 

3 The model ' Bundbrief ' composed by the Reformers (cp. Bolten, Ditmarsische 
Geschichte, Flensborg and Leipsic 1781-88, Theil iv. p. 85 note), after forbidding the 
practice of taking oaths in matters of which the oath-helpers are entirely ignorant, 
observes that such oaths are false witness and perjury, and are against the command- 
ments of God (formula in Viethen, op. cit. pp. 161 ff.). The actual institution of 
oath-helpers persisted after the Reformation, but the function was to be exercised by 
fellow-parishioners, not kinsmen. (Cp. Nitsch, Das alte Dithmarschen, pp. 21 f. and 
Dahlmann, Neocorus, n. pp. 573 ff.) 

4 K. W. Nitsch, Das alte Dithmarschen (Kiel, 1862), p. 22. 

8 Michelsen, p. 329. 6 II. clxxxiv. 5. 

P. 9 



130 NORTH GERMANY AND HOLLAND 

The Protestant pastors thundered against the oaths of corn- 
purgation and against the deeds of alliance between slachte 
or their dependent groups. We may perhaps venture to guess 
that their crusade would not have been so successful if the 
people themselves had not begun to chafe at the tyranny of 
the old organizations. In any case, the effect of the Protestant 
tirades was quickly visible. In 1538 an Act was promulgated 
which gives clear expression to the new views : " God be 
praised and magnified, the country has been so instructed and 
so taught in the word of God by our superintendents and 
preachers, that all the evil alliances of all slachte of old through- 
out the whole land of Ditmarschen have been dissolved, annulled 
and loosed 1 ." 

The second triumph of the Protestant pastors comes in 1554: 

"Whoever slays his fellow-Christian, whom God redeemed through 
Christ, who for that cause shed His precious blood on the gallows of the 
Cross, be he poor or rich, of high or low estate, he shall, without any help 
from proofs of having acted in self-defence, in his turn die and be punished 
with the sword, according to the commandment of God and the holy Bible 2 ." 

But the autonomy of the Ditmarschers was nearly at an 
end. In 1559 they were conquered by the combined Danish 
and German forces, and henceforth formed part of Holstein. 
The new law of 1567 again expressly abolishes the oaths of 
compurgation 3 ; but tempers the severity of the previous edict 

1 Ldrecht n. ccxlv. "Wat vor recht me in de stede slachtes nemede geuen 
schal.... Indeme, Godt gepryset vnde gelouet, dat Land dorch ore Superattendaten 
vnde Predicanten mil deme worde godes so vnderrichtet vnde geleret, dat alle de 
vordomelike vorbiintenisse aller Slachte vormals, dorch dat gantze landt tho Dith- 
merschen, vpgeloset, vornichtiget vnd fry gemaket...." 

8 in. 2. " Wer auerst sinen euen Christen minschen, so Godt dorch Christum 
erlosset vnd darauer he am galgen des Criices sin durbar bloth vorgaten hefift, 
dodtsleith, he sie arm edder rick, hoges edder nidriges standes, de schal sunder 
jennige behelp van NotwertQchnisse edder anders, na Godes gcboden vnd der hilligen 
Bibel, wedderumme steruen vnd mil dem Swerde gestraffet werden." 

As a matter of fact the Protestant pastors were against the death-penalty being 
meted out to those who had acted in self-defence, but possibly the Ditmarschers 
intended to avoid the evasion of a death-sentence through specious pleas of self- 
defence or accident, which were so common in the neighbouring districts. 

8 Dithmarsische Land Recht (Gltickstadt, 1667), Art. 13, i : "...Darumme 
heven Wy hiermit up und casseren allent wat in dem olden Dithmarschen Land Rechte 
van den schlachtnehmenden, klufftnehmenden karcknehmenden und den anderen 
Eeden...bruklyk gewesen." 






NORTH GERMANY AND HOLLAND 131 

as to manslaughter by making an exception for slayings com- 
mitted in self-defence 1 . As a matter of fact the Duke seems 
seldom to have insisted on the infliction of the death-penalty, 
but to have contented himself with extracting heavy fines 2 . But 
he struck a more effective blow at the Ditmarschen clans by 
enacting (1559) that female heirs were to share equally with 
male heirs in landed property as well as in movables, or at least 
(1567) were to be bought out. The confusion resulting from 
these laws imposed on an agnatically organized society did no 
doubt tend towards the disintegration of the clans ; especially as 
the lawyers ruled that in cases where there were no children to 
inherit, the mother came before the brothers of the deceased 3 . 
Curiously enough, we find women not only widows of the slain, 
but also sisters 4 , partaking of the wergild or taking part in 
treaties, as well as brothers-in-law 5 and even a wife's step-father 6 . 
These cases, though mostly occurring very soon after the pro- 
mulgation of the new law, may be due to the confusion caused 
by it, or they may possibly indicate that the agnatic principle 
was not so strictly carried out in wergild matters as the law 
would lead us to suppose. 

Except for the constant expression " and his whole kindred " 
occurring in pleas to the Duke, whether for the pardon or for the 
execution of a slayer ; and sometimes in treaties with the kindred 



1 Art. 1 1 8, i o. " Werd de Nohtwehr also bewyset so schall he dem heren de 
Broke geuen." n, "Und des Doden halven mit synen negsten Frunden sick 
uhtsohnen und verdragen." In 1607 the Duke forbids private treaties, Michelsen, 
Urkundenbuch zur Gesch. Dithm. (Altona 1834), No. CLXX. pp. 388-9. 

3 In one case 3000 Mk : Gemeinsch. Arch. (Copenhagen, Rigsarkiv) xxi. 72 
(Henning Clawessen). 

8 Michelsen, Urkundenbitch zur Gesch. Dithm., Altona 1834, pp. 233 f. (quoted by 
Sering, op. cit., p. 142). 

* Copenhagen Rigsarkiv : Gemeinsck. Arch. XXI. 72 (ffansborg). Junge Suells 
Johan pleads to the Duke that he has "des entlyuedenn broder vnd Sch wester... 
gefrediget...vnd dermathen gestillet, dat she my...christlich vorgeuen hebben," 1574. 
See also xxi. 72 i>, the treaty: " Im Namen seiner Soesteren Vedderenn vnnd 
Verwantten." 

8 ib. xxi. 72 . An appeal to the Ftirst and Rathe: "...ihm namen vnd von 
wegen ihrer Principalen vnd ahngeborne freundt ohme, shone vnd schwegerer." So 
also Schl. Arch. Acta A. xx. No. 737, 9 Aug. 1634 (Jeronimus Bartelt). 

8 ib. xxi. 72 c, case of Heinrich Carstens Heinrich, one of the signatories is Claus 
Jurgen (G. ]oha.n's/ruuwtn Steffader). 

92 



132 NORTH GERMANY AND HOLLAND 

of the slain 1 , there is very little extant evidence for the persistence 
of the slachte in Ditmarschen for the century following the Re- 
formation. But the kliifte, at any rate, had not been entirely 
broken up, for documents are extant from the I7th and i8th 
centuries which show that they survived in a modified form. 
These are the so-called kluftbiicher, containing provisions for 
mutual help, etc. among the members of the kluft. There is 
frequently some mention of their rules being submitted to the 
official of the district for approval, without which formality such 
associations were illegal. Thus the ' khiftbuch of the Menger- 
mann's kindred 2 ' has the following preface : 



1 Rigsarkiv (Copenhagen), Gemeinsch. Arch. xxi. 66, Reinholt Rodens "frund- 
schafft vnd vorwandten " (1563); xxi. 55 (Vertecknuss der Totschleger Im Sunderdeel 
Dithmarschen wnnd ihrer gueder) : for slaying a foreigner : ' ' Nhun hebben ehme 
syne frunde geholpen, dat he dess entlyueten Eruen gestellet"; XXI. 72, "Wy 
hinrich Vagdes grote Johans nachgelassen brodre vnnd wy andere mit In nhamen der 
gantzen frundschop" (29 Nov. 1575) ; xxi. 72 b, " Seligen Glaus Vogdts vnnd Heinrich 
Vogds Grosse Johanns nachgelassene Brudere Vettere vnd freunde" (1575), ib., Peter 
Denkers "ahngeborne freundt, ohme, shone, vnd schwegerer "; ib. " wy auerst vann 
des dedernn Frundtschop... thorn oftermale dath menn idt tho enem vordrage kamen 
laten muchte, angelanget...wy...ock des entliuedenn Andern Veddern vnnd frunden " ; 
ib. " olde Kruuss Per Clawess, syne fruntschop vnnd vedderenn...ick ock vann 
vegenn mynes entliueden sons dar suluige peter Krussen und seine Vedderen vnnd 
der gantzenn fruntschop" (1573); ib. " Stellanus S^stedenn Gantzenn freundschafft " 
(12 Nov. 1573); ib. "der beiden deder fruntschop" (in a letter of Henning Boie to 
the Duke). Cp. (ib., in a wergild treaty) " Dass sie die obbenante des entleibtin 
(sic) Vatter vnd Vatters bruder fur sich vnd alle Ihre angehdrige Verwandte freundt- 
schaft mit den obbenante des Carsten Lowerhofs freundten solche todtschlags...halben 
sich vorgeliechen." 

2 Kieler, Univ. Bibl. Cod. MS. H. 195 D.D.D. 4 to. "Wir die sammtliche 
Kluffts Vettern des Menger-Manns Geschlechts alhier auff Biisum, Uhrkunden und 
bekennen hiemit vor Uns und unsern Erben. Demnach bereits von langen Jahren 
her unsere Vorfahren unter sich eine Vetter- und Briiderschafft auffgerichtet, und 
gestifftet, krafft welcher ein Kluffts Vetter dem Andern wie ein Bruder in alien 
No'then hatt Hiilffe und Beystand leisten mussen : Wir auch so viel Uns moglich 
gewesen, Solches in Observance behalten. Es aber jtzo das Ansehen fast gewinnen 
will, als wenn ein oder ander Articul, so unsere Vorfahren vorhin wohl bedachtlich 
gemachet, jtziger Zeit nicht recht nachgelebet wird, wie es bereits die Erfahrung 
gegeben, weil die Mehresten nicht deutlich genug exprimiret, noch die Confirmation 
gehdrig dariiber gesuchet worden. So haben Wir, mit reiffen Vorbedacht bey Uns 
beschlossen, diese unsere alte Articulen von unserm Kirchspielschreiber durchsehen, 
und verbessern zu lassen ; nicht zweiflende, ein hochpreyssliches Gericht werde solche 
nachgesetzte Articulen Nahmens Ihro Kbnigl. Hoheit giitigst zu confirmiren geruhen." 



NORTH GERMANY AND HOLLAND 133 

"We, all the 'Klufts Vetter' of the Mengermann's kindred here in 
Biisum, make known and declare herewith for ourselves and our heirs : 
Whereas already long years ago our ancestors founded and established a 
Vetterschaft and brotherhood amongst themselves, by virtue of which one 
Klufts Vetter must help and succour the other, like a brother, in all difficulties ; 
and we also, so far as lay in our power, have kept the same in observance : 
but now the view seems to gain ground, that perhaps one or another article, 
which our forefathers made of old no doubt with due consideration, cannot 
be followed rightly at the present day, as experience has already shown, 
because the most of them are not clearly enough expressed, nor has con- 
firmation of them been duly sought. Therefore, after full consideration, we 
have decided amongst ourselves to have these our old articles looked through 
by our parish clerk, and corrected, not doubting that the worshipful Court 
will deign to confirm such articles as follow in the name of His Royal Grace." 

The articles, briefly stated, are as follows : 

1. Each to help the other. 

2. The kluft to clear any member who is slandered, if it is notorious 
that he is innocent. 

3. To tend the sick at night in turns. In the case of contagious disease 
to pay for a nurse. 

4. Men and women to appear at any member's funeral ' in ihren besten 
Trauer Habitt.' 

5. If any member is ill at harvest-time, each Vetter to give a day's work 
free of charge, if required. 

6. If a Vetter dies without issue, his heirs to pay the Kluft 6 mk. 

Any Vetter leading a dissolute life, or making a 'despicable' marriage, 
36 ejected from the Vetterschaft. 

8. Any Vetter making mock of these articles, or leading the Vetterschaft 
into a law-suit with outsiders, pays 6 marks to the Kluft and 6 marks to the 
Ducal Chancery, and will be ejected from the Vetterschaft if he offends in 
this way twice. 

9. Two ' Alter Leute ' to be chosen every year. 

10. The Alter Leute to have charge of the great drinking horn, mounted 
in silver, and the funeral pall. The horn can be lent to members of the Kluft. 

n. A yearly meeting on the Monday following Rogation Sunday, in 
order to discuss whether or no a tun of beer shall be drunk. 

12. A feast the Monday after Whitsunday ; all members over 18 years 
of age to attend it. 

13. No strangers allowed at the feast. 

14. Cursing and swearing forbidden at the feast, penalty of 3 mk to 
the Kluft and 3 to the Ducal Chancery. 

15. Quarrels and blows forbidden at the feast, penalty 6 marks to the 
Kluft and the same to the Ducal Chancery. 

1 6. If the Kluft has need of more money, every male member of the 
Kluft to contribute equally. 



134 NORTH GERMANY AND HOLLAND 

17. Arrangement of the pews in church belonging to the Kluft. On the 
death of occupier the nearest relative takes the pew. No one outside the 
Kluft may lease them. 

1 8. Women of the Kluft to help each other. 

On the i8th August, 1737, 37 persons sign the above (mostly with marks). 
The document is 'approved by the authorities on Dec. u, 1737' on con- 
dition that all insults and quarrels are announced to the Chancery. The 
book is handsomely bound. 

Another 'kluftbuchj dated 1671 J , is of interest as re-confirming 
an alliance between the ' very ancient Dickboleman schlacht ' and 
the Hackens men. This book contains 55 names; and notes the 
payment of fines, admission of new members, etc. The last entry 
in it is dated 1811. In another kluftbuch, written in 1717, that 
of the Hersens, there are 58 names, but only the three surnames 
Dyrsen, Kroeger, and Sieverts occur 2 conclusive evidence that 
these gilds are really based on kinship, even if they occasionally 
admit persons who are not kinsmen to their associations. That 
they fulfilled real functions is vouched for by Pastor Harm, who 
observes that until about 1760 no workhouses were needed in 
Ditmarschen, nor fire insurance societies 3 . As regards the latter, 
indeed, gilds still exist in Ditmarschen, more especially in Busum, 
which fulfil these functions, and are a shadowy survival of the 
ancient and powerful slachte*. According to Sering 5 , two '///*' 
still own landed property in common ; shares in it are still in- 
herited according to the ancient agnatic principles of the 
commonwealth. 



1 Kiel. Univ. Bibl. S. H. 195 D. Heckens Kluftbuch. 

8 Printed in A. Niemann's Miscellatteen, II. 2 Stiick. Altona and Leipsic 1800, 
pp. i3ff. Cp. also the Mollersen Kluftbuch (Kieler Univ. Bibl. Cod. MS. S.H. 
195 D.D.) which declares that it was founded in 1588 "aus keinen andern Grund, 
alss dass Einer dem andern in Noth und Tod wie Vettern und Bruder beystehen... 
sollen," and it was reconstituted in 1735- It has 25 signatories (the last two 
were admitted in 1777), a ^ w ^ one exception surnamed Hlibber, Hannssen or 
Matthiessen. (This is also a very handsomely bound book.) 

3 C. Harm's Vermischte Aufsatze, Kiel, 1853, p. 77, and p. 75 : "Wo noch am 
langsten sich eine Geschlechtsverbindung erhalten hat, freilich ohne Schlachtbrief, 
bis auf unsere Zeit (i.e. middle of i8th century) da gab es reiche Leute bis auf unsre 
Zeit und nun nicht mehr in St Annen." 

4 Sering, op. cit., p. 139. 
' Op. cit., p. 127. 



NORTH GERMANY AND HOLLAND 135 

2. Holstein exclusive of Ditmarschen. 

The understanding of the Holstein laws is rendered much 
easier by our previous study of the Ditmarschen law, for in the 
rest of Holstein we find the same tendencies, though not so 
strongly marked. It will be best to begin with two edicts from 
the 1 5th and i6th centuries respectively. The first is written 
at the order of the Danish king Christian I. to the nobility of 
Schleswig-Holstein, in 1480: 

"His Grace had also heard of certain Schlechten which have allied them- 
selves to one another, the which his Grace had no intention of permitting : 
since his Grace is a prince of the country, his Grace considered himself 
capable of settling any quarrel and dissension arising in his dominion, so 
that his Grace will suffer no alliances, neither among the common folk, 
nor, in especial, among you 1 ...." 

The next is addressed to Bordesholm monastery by Duke 
Johan, in I556 2 : 

" And whereas it has come to our notice, and is in fact notorious, that 
in the domain of our monastery Bordesholm, many manslaughters and evil 



1 Printed in N. Falck, Sammlung zur ndhern Kunde des Vaterlandes (Altona, 
1819-25), Bd in. p. 356: "Syner Gnaden were ock bygekamen van etlichen 
Schlechten, de sick malck ander verbunden, welck syner Gnade nenerley Wiese 
dechte tho lidende, dewiele siene Gnade ein Ftirst der Lande were, dachte siene 
Gnade Unwillen und Misshelligkeit in synen Landen riesende wohl tho scheidende, 
so dat syne Gnade nenen Vorbund noch in dat Gemene, noch in besonderheit dechte 
edder will hebben, und wo sine Gnade darentgegen wes befunde, denket und will 
syne Gnade straffen, so sick dat behorL" 

2 Rigsarkiv, Copenhagen: Gemeinsch. Arch. (Hansborg), xxv. 9: " ...Vnnd alss 
wy yn erfarung kamen, vnnd egenthlig berycht werden dath ynn vnsses Closters 
Bordesholm gebede, vele todtslege vnnd bosse daden gheoueth vnnd begaen werden, 
vnnd eyn tydt lanck her de ghebruck vnnd ghewanheith ghewessen, dath vor ersth, 
des enthlyueden frunde szolchs myth der fusth rechnen wyllen, vnnd szyck de deder, 
szo ethwes befrundet vnnd vormogens szynn myth ghelde vthwercken vnnd darmyth 
der lyffstrafte gheoueryth vnnd entf(ry)eth szynn... Demnach meynen vnnd wyllenn, 
ghebeden vnnd beuelenn wy vth furstlicher macht gnedig vnnd gansz ernstlig dar 
szyck henfurder (der)ggelicke todtslege thodrugen, Gy wylleth de vorbrekunge nicht 
myth ghelde wo beth her gescheen, affkopenn lathenn, szundern ahm lyue strafenn 
vnnd vngeacht eyniger ghewonheith, hals vor hals nhemen wo denn byllig vnnd 
szolchs ock yn ghemeynem beschreuenn Rechten vorordenth. Des scholen szyck 
ock de frunde an ghelyck vnnd recht szedigen vnnd benughenn lathenn, vnnd 
daedtliche vorhandlung an des deders frunden by vormydunghe lyues straffe vthernn 
vnnd entholden...Actum Flenszburg 2ote octobris anno clvj (1556)." (Printed in 
Westphalen, Mon. ined. II. 539-40.) 



136 NORTH GERMANY AND HOLLAND 

deeds are practised and committed, and that for a while the custom and 
usage has existed here, that, to begin with, the kinsmen of the slain man will 
avenge such deed with the fist, and that the slayers, if they be fairly provided 
with kinsmen and goods, can redeem themselves with money, and thereby 
override and escape the death-punishment.. .we consequently graciously and 
very earnestly desire and wish, order and command with our princely au- 
thority, that when henceforth such slayings occur, ye will not suffer the 
crime to be bought off with money as has happened heretofore, but punish 
it by death ; and, in despite of a certain degree of custom, take neck for 
neck, as indeed is fitting, and is laid down in the common written law. The 
kinsmen shall moreover allow themselves to be satisfied and content with 
justice and equity, and shall refrain and withhold themselves, on pain of death, 
from violent dealings with the kinsmen of the slayer." 

In some part of Holstein, then, the formation of alliances 
among the kindreds was already marked enough to cause alarm 
to its ruler. In the districts where the Sachsenspiegel was in 
force, we have no further knowledge of such schlachte, but in the 
eastern part of Holstein the laws, as we shall see, make mention 
of vetterschaften which must surely resemble the Ditmarschen 
klufte. 

Unfortunately the only manuscripts extant of the Bordes- 
holmer Amtsgebrauche and the (almost identical) Neumiinster 
Kirchspiels Gebrauche are very late, from c. 1690 and 1712 
respectively, though the custumal itself dates from the I2th 
or 1 3th century 1 . It is thus natural that they restrict the 
wergild to cases of self-defence 2 : 

In such cases the slayer shall pay a fine to the lord, and come to terms 
with the kinsmen of the deceased. " In this matter the custom is to be 



1 Seestern-Pauly, Die Neumiinster 'schen Kirchspiels- und die Bordersholinerschen 
Amts-Gebrduche (Schleswig 1824), pp. 19 f., 114 ff. 

s Ib. pp. 114(7., Neumiinster Kirchspiels Gebrauc/ie, Art. LXil. : " Hierbey ist 
der Gebrauch (so des Todtschlagers Freunde bey Erlegung des Aussohn-Geldes, oder 
des entleibten Freunde bey Empfangung des Sohne- oder Vortrag-Geldes, halten) 
in acht zu nehmen, die Vetterschaft wird also gehalten, wenn einer ihres Mittels der 
Vettern einen Todtschlag begehet ; so miissen die gesammte Vettern zu ihrem Theil 
erlegen 40 Mk., die iibrigen 20 Mk. aber der Thater. Begiebt sichs auch, dass eine 
in der Vatterschaft wurde entleibet, und die Entleibung also beschaffen ware, dass 
der Thater zum Aussohne gelassen werden konte, auf solchen Event ziehen die 
Vettern 40 Mk., die Ubrigen 20 Mk. empfahen die nachsten Erben, und theilen 
selbige unter sich ; Hierbey ist sonderl. zu merken, liess der Entleibte eine Wittwe, 
nebst einem Sohne und Tochter, hinter ihm, so nimmt der Sohn die 20 Mk. und 
schleust Mutter und Tochter aus: Ursachlich, dass dis Werk das Geschlecht oder 



NORTH GERMANY AND HOLLAND 137 

heeded (which the kinsmen of the slayer observe when they pay the recon- 
ciliation-money, or the kinsmen of the slain on receiving the peace- or 
treaty-money) : the Vdtlerschaft is similarly bound, when one of its group of 
'cousins' commits a slaying: the whole body of 'cousins' must pay 40 
marks as their share, but the slayer the remaining 20 marks. If it should 
further chance, that one of the Vcitterschaft is slain, and the slaying was 
done in such wise, that the slayer might be admitted to reconciliation, in 
such an event the ' cousins ' receive 40 mks ; the remaining 20 marks are 
received by the nearest heirs, who divide the same among themselves. 
Hereby it is specially to be noted, that if the slain man left a widow, besides 
a son and daughter, the son takes the 20 marks and excludes mother and 
daughters. The reason is, that this work concerns the kindred or the stock 
(Stamm), and those born into it belong to the father's and not the mother's 
kindred : on this account this peace-money goes to the son as the [descendant 
of the] stock, and does not extend to reckoning the Vcitterschaft on the 
women's side : therefore the latter cannot or may not be included. If 
however no sons exist, such 20 marks go to the mother and daughters, 
who divide the same among themselves." 

The passage in the Bordesholm text ends : " annulled, Dec. 2, 
I6I9 1 ," but the Neumiinster text, otherwise identical, has no word 
of the repeal of the law. 

It appears from the above that the vetterschaft, or schlecht as 
the earlier edict has it, is an association of kindred, on an agnatic 
basis, like the Ditmarschen kluft. On the other hand, it must 
be noted that the law evidently considers the possibility that the 
slayer, or slain, is not a member of such an association at all, for 
it bases the payment to the vetterschaft on the analogy of pay- 
ments to the kinsmen in general. 

The little island of Fehmarn, near Lubeck, is generally 
supposed to have been populated by Ditmarschers after the 
devastation of the island in 1419 by Erik of Pomerania 2 . In 



den Stamm angehet, und die so gebohren werden, folgen nach des Vaters und nicht 
der Mutter Geschlecht, derowegen dies Sohngeld dem Sohne als dem Stamme folget, 
und erstrecket sich nicht zu rechnen die Vatterschaft auf die Frauens Bilde, die den 
dahero nicht konnen oder mogen dazu gezogen werden. Seind aber keine Sohne 
vorhanden, fallen solche 20 Mk. auf Mutter und Tochter, und theilen selbige under 
sich." 

1 " abgesprochen d. 2 Xbris ao. 1619." 

2 So Sering, p. 32, and others. But cp. Sarauw, " Nachtrag zum Versuche einer 
gesch. Darstellungdes polit. Verhaltnisses der Insel Fehmarn," Ncues Statsbiirgerlichcs 
Magazin, IV. pp. 499-504. 



138 NORTH GERMANY AND HOLLAND 

any case the organization is very similar to that of Ditmarschen, 
though the groups of kindred are termed ' vetterschaft ' as in 
East Holstein. With regard to wergild, the statutes of the 
Witte-Mackeprang vetterschaft ', of 1611, ordain that if one of 
its members kills a man, the vetterschaft shall aid him to the 
extent of 60 marks. But if one of their members is the victim, 
the slayer shall have no peace without the consent of the whole 
vetterschaft. 

As late as 1822 a Danish observer found two vetterschaften 
in existence at Burg, and had an opportunity of examining the 
vetternbuch of one of them. He found that the old articles of 
1563 had been confirmed in 1656 by the mayor and Council 
of Burg, and had been translated in 1776 into High German. 
The rules, which closely resemble those of a Ditmarschen 
khiftbuch, were still in force in i822 2 . 

Since the customary law known as the Sachsenspiegel was in 
force in the remaining districts of Holstein, at any rate where it 
did not conflict with local custom, it may be well to discuss it 
here, though its validity extended over a much larger area. It 
dates from the first quarter of the I3th century. Unfortunately 
its wergild clauses are so brief and so obscure that we can 
only glean the information that wergild can be paid in cases of 
self-defence, and the law seems also to contemplate it in other 
cases 8 . All free classes seem to have approximately the same 
wergild 4 , a feature in which Sachsenspiegel resembles the Jutish 
laws. But the wergilds, mostly in kind, of various inferior classes 
are also given. Wergild is paid to the kinsmen, 'magen,' 
but we are not told who these are 5 . One passage seems distinctly 
to suggest that kinsmen sometimes helped to pay the wergild : 



1 Brunner, Sippe und Wergeld, p. 13. Cp. Schles. Arch. Acta C. xix. 4, No. 4 
(18 Sept. 1605) " ...Wan nhun...zwischen Beklagten als des Theters Vatter vnnd des 
entleibetes Vetteren, Brueder vnnd Freunden ein Vertrag...auffgerichttett...." 

2 Statsb. Magazin, iv. p. 250 : "Vetterschaften auf Fehmarn." MS. copies of 
the Rauert's Vetternbuch (made by Michelsen?) are in the Kiel Univ. Bibl., Cod. 
MSS. H. 503, O., 410., and ib. 503, P., 410. 

3 J. Weiske, Sachsenspiegel, Leipsic 1895, Buch II. Art. 14, i. 

4 Sachsenspiegel, in. 45, i. "...Vilrsten, vrte herren, schephenbare lute, die sint 
glich in bflze und in weregelde...." Cp. Ph. Heck, Die Gemeinfreien. 

8 ii. 14, i. "den magen ir weregeld." 



NORTH GERMANY AND HOLLAND 139 

" Where more people than one promise together a wergild or other pay- 
ment, they are all bound to produce (it), as long as it is unpaid ; and not 
any one of them the whole ; for each shall pay as much as is fitting for him, 
so far as he can be forced thereto by the court, (by him) to whom the sum was 
promised, or by him with whom he promised, if he (the latter) has already 
paid it 1 ." 

But it is to be noted that the law apparently only forces 
them to pay if they have promised to do so. 

A clause ordaining that every man is bound to give security 
for his lord or for his swertmac*, agnatic kinsman, in cases of 
slaying or wounding, seems to indicate a tendency towards an 
agnatic system of kinship, but of this there is little other trace ; 
and in the i6th century in Steinburg, which was presumably 
under Saxon law at that date, we find a case in which the 
' matter's brother and his kinsmen ' attempt to avenge the death 
of a nephew 3 . 

There is good reason for supposing that kinsmen (possibly 
only near relatives) took part in reconciliations, and even paid 
and received wergild, until the beginning of the i/th century. 
Thus at a reconciliation which took place at Oldeslohe in 1607 
two brothers pay 120 marks to the 'kindred' (freundschafft) 
of the man whom they slew*. In a case of 1579 the Court 

1 ill. 85, i. " Swar mer lute den ein zu samene geloben ein weregelt oder ein 
ander gelt, alle sint sie phlichtic zu leistene, die wile ez unvergulden ist, und nicht ir 
ieclich al ; den ieclich sal gelden als vil als ime gebiiret, und also verne als man in 
d&r getwingen mag von gerichtes halben, der deme ez da gelobet ist, oder der ez mit 
ime gelobete, ob erz vor in vergulden hat." 

3 Ssp, II. i. " Gewere sal iewelk man dun umme dot slach unde umme lemesle 
unde wunde, vor sinen herren, dem he bestat unde vor sine svertmage." H. Rosin, 
Der Begriff der Schwertmagen (Breslau 1877), thinks this means : a man who is him- 
self wounded shall pledge himself that no claim be made by his Sivertmag against the 
offender. 

3 Copenhagen Rigsarkiv: Indkomne Sager 1530-50, T.K. (I. A.), I. No. 24. 
The "getruwenn rede vnnd landtsathen der furstendome" plead for their "ffrunt 
vnnd landtman" Heinrich Blome (of Steinburg): "Wo her peter schramme de der 
frantz luersenn moder broder Is myt syner fruntschop schole dar na trachtenn und 
stann dat he... erne na halse en liff vnd gude stann vnd handele erne vnde syner 
fruntschop tho keyner geringenn vorkleninge...." 

4 Schl. Arch. Acta A. xx. 364, 7 July 1607, the 'Vertrags BrifF: "die gebriidere 
Bartellt vnd Dithmar Dithmarsen Einhundertt vnd zwantzigk margk leubisch, nebens 
alien angewendeten Unkostungen vnd schaden, obberurten vnseren Mitburgern Glaus 
Kraegens ivegen der anderen freundschafft vulderlich erlechtt vnd zugestellet...," and 
Copenhagen Rigsarkiv, loc. cit. (1548), "Rathlouenn Veddern vnd fruntschup." 



140 NORTH GERMANY AND HOLLAND 

sentences the slayer of a fisher-boy to death, unless within four 
weeks he can come to terms with the kinsmen of the deceased, 
and his lord 1 . 

An interesting case from 1669 shows that in the matter of 
support of needy kinsmen a corporate responsibility of the 
kindred lasted in Holstein until a very late period. In 1669 
one Adam Trutenberg, plaintiff on behalf of Anne Wilde, sues 
Johann Hasse for alimentation. The Court decides : 

"If the accused can prove by oath within 17 days that he is not related to 
the plaintiff within the third degree (second cousin), he is to be absolved 
from the suit : in default of the oath, however, he will be liable to contribute 
pro quota to the cost of alimentation 2 ." 

This verdict was given in the Wilstermarsch ; and the liability 
of the kinsmen might be considered to be a custom of that 
district, which has its own customary Marshland law, but that 
a Holstein lawyer, writing of a similar case in 1738, observes : 

" Relatives who are related to the needy person within the third degree, 
canonical computation, are liable to contribute pro quota to his support, in 
such fashion that, if the children of brothers and sisters contribute I Rixdollar, 
the grandchildren of brothers and sisters give 24 sk.... Therefore it seems to 
me right and necessary that Mr N. should first in a friendly manner 
desire of all his relatives who possess means and are related to him within the 
third degree, that they would give him something annually to help him. If 
this does not avail, he must have them prosecuted on this plea before the 
worshipful government (as the same is forum ob connexitatem causae, since 
the relatives live under divers jurisdictions) and I hope that, when they see 
that he is in earnest, they will soon meet him (in the matter) 3 ." 



1 G. W. Dittmer, Das Sassen- und Holstein Recht.,.im i6de Jhdt. Liibeck 1843, 
p. 95, No. xix. Cp. also p. 180 (1609). 

2 Falck, Samtnl. der wichtigsten Abh. zur Erlduterung der vaterland. Gesch, 
(Tondern 1821), Bd I. p. 89 : " In Sachen Adam Trutenberg nomine Annen Wilden 
Klagerin, wider Johann Hassen Beklagten, gesuchter Alimentorum : Erkennen die 
16 Gerichts-Personen hiemit filr Recht: Wird Beklagter heute liber 17 Tage eydlich 
erhalten, dass er der Klagerin im 3ten Grade nicht verwandt, ist er von angestellter 
Klage zu absolviren : in Ermangelung des Eydes aber zu den Alimentations-Kosten 
pro quota mit zuzuschiessen gehalten. Wilster 10 Nov. 1669." 

8 Falck, Samml. der wichtigsten Abh. Bd I. p. 89. Cp. also p. 507, where Falck 
observes that it would be a good plan to revive the rule, but that in that case the 
rights of the kindred over the inherited lands, done away with in 1798, would have 
to come into force again. 



NORTH GERMANY AND HOLLAND 14! 

This liability for maintenance must thus have been in force in 
the whole of Holstein, for the case could else hardly have been 
brought up before the High Court. It is extremely interesting 
from two points of view. In the Icelandic law the duty of 
maintenance only fell on the nearest kinsman ; here, the kindred 
is regarded as corporate: all relatives within the prescribed 
degree are liable for a contribution, as in wergild. 

The second point to note is that this liability extends to 
cognates as well as to agnates : the children of brothers and 
sisters contribute the same amount. We must beware then 
of regarding the possibly agnatic vetterschaften of East Holstein 
as indicative of a society organized on an agnatic basis, as in 
Ditmarschen. The following cases seem to furnish further 
evidence to the contrary, at least for the nobles and the towns. 
In the 'Solemn Apology' of 36 noble persons, on account of 
the slaying of Gerhard Ranzow by Friderich Brockdorf 1 , dated 
1558, we not only find women taking part in the public plea 
for pardon, but the various surnames of the male relatives, 
Brockdorf, von Qualen, Ahlefeldt and von der Wisch, can only 
indicate that they were not all agnatically related to the slayer. 
The same thing is shown in a plea to the king from the rela- 
tives of Friderich von Ahlefeldt, signed by a von Bockwolt, 
a Sehested, a von der Wisch, a Biilow, two Ranzow brothers 
and a Pentze, who call themselves ' cousins, brothers-in-law and 
kinsmen of the slayer 2 .' 

So also in the towns of Kiel and Liibeck 3 . Here however 
the kindreds certainly lost their solidarity earlier than in the 
rural districts, so that we must take our examples from an 
earlier time. The following deed of reconciliation of 1423, in 
Liibeck, shows the participation of nine kinsmen of the slain, 
who, to judge by their surnames, can hardly all be agnatically 
connected with him : 



1 See Appendix II. 

- Rigsarkiv (Copenhagen): Indkomne Sager 1530-50 : T.K. (LA.) I. No. 74. 

3 Cp. Pauli, " tiber das Liibeckische Mangeld," Zs. des Vereins f, Lub. Gesch. 
Bd III. (1876), p. 298, H. Luppe, Beitrdge zum Todtschlagsrechte Lubecks im 
MA. Kiel 1896, also Mitth. der Ges. f. Kieler Stadtgesch. Heft 17, No. 55 



142 NORTH GERMANY AND HOLLAND 

" Marquardus vam Sande, Wennekinus Brassche, Nicolaus Brassche, Hin- 
ricus Gutendorp, Nicolaus Gutendorp, Detlevus Svartekop, Hinricus Morssel, 
Tydekinus Morssel, Nicolaus Wulff, propinquiores heredes et consanguinei 
et amici et nomine omnium aliorum heredum seu amicorum dicti Hennekini 
Lubberdes coram consilio et hoc libro recognoverunt, se conjuncta manu ad 
suffienciam sublevasse et percipisse a Johanne Olrikes XL. marcas lub. den. 
in satisfacionem seu emendam interfeccionis seu occisionis dicti Hennekini 
Lubberdes 1 ." 

The evidence of the following case (Liibeck 1441) is less 
clear : 

"Scylye, the widow of Peter Senneken of blessed memory, Henneke 
Senneken, Michael Stolte, Byke, Bernd Nyendorp and Tydele of Hameln, 
by birth kinsmen of the aforesaid Peter Senneke, on behalf of the said 
Scylye's children and all heirs, relatives and kinsmen... of the said Peter 
Senneken, have acknowledged in the presence of the Council and on the 
book, that for the slaying and compensation... they have taken over and 
received to their satisfaction 40 marks of Liibeck money 2 ." 

There is however more definite evidence than this that 
wergild was not restricted to agnates in Lubeck law, for we 
find the filius sororis patris taking wergild 3 , and in another case 
iheji/ius sororis*. In yet another case, also of the middle of the 
1 5th century, we find the brother and sister receiving wergild 5 . 
In 1461 the half-brothers of the slain swear the oath of recon- 
ciliation on behalf of themselves, their heirs, and those who are 
connected with them on the spindle side 6 . On the other hand, 



1 Pauli, op. cit. p. 298 (Niederstadtbuch of Lubeck). 

2 Pauli, p. 308. Niederstadtbuch, No. xxxvm. " Scylye, wedewe Peter Senneken 
seliger dachtnisse, Henneke Senneken, Michael Stolte, Byke Bernd Nyendorp vnde 
Tydele van Hameln, angeborne vrunde des erbenomeden Peter Senneken, van der er- 
benomeden Scylyen erer kindere unde van wegen aller erwen, mage, unde vrunde... des 
erbenomeden Peters Senneken vor dem rade unde vor dem boke hebben bekant, dat 
se Clawese Wildeshufen von den dotslach unde beteringe...to ere genoge upboret 
unde entfangen hebben vertych mark lub. pen." Up to 1500 we occasionally find 
kinsmen helping to pay the wergild : Ltib. Urk. B. VI. 735, vm. 269, Pauli, No. LVH., 
Lix., xcix. (1500): "sodane gelt van dem manslachtigen manne unde sinen vrunden 
entfangen hefft." 

3 Pauli, op. cit. No. xxx. 

4 Ib. No. xxxi. 
8 Ib. No. XL. 

8 Cod. Dipl. LUb. Bd x. Ivi. "...also dat Hans vnde Gereke Plate noch ere 
eruen noch alle de ghenne, de ze van der spille syde mechtich zint...nicht manen 



NORTH GERMANY AND HOLLAND 143 

in 1457 Herman Vischer sues two brothers for wergild for 
Hinrik Rekeman, his wife's father ; but the council decided 
that wergild went to the spear side, and not to the spindle 
side 1 . 

The older Liibeck law also knows of the oath of compurga- 
tion by 12 kinsmen, but contemplates the possibility that such 
kinsmen are not available 8 . 

It is curious to find an official edition of the statutes of 
L.ubeck, published in 1728, still containing the following clause: 
" With regard to slayings and woundings the guilty party may 
not come to terms with the kindred of the slain or wounded man, 
nor they with him, without the previous knowledge of the Court 3 ." 

II. Hamburg and Environs. 

Before we cross the Elbe, a glance at the Court records of 
districts under the jurisdiction of Hamburg will not be out of 
place. These give a highly instructive account of a case in 
1609, in which the Public Prosecutor appears. The counsel of 
the accused pleads that ' the step-father, father's brother, brothers 
and brothers-in-law of the deceased ' had while he was still alive, 
and with his consent, made a treaty with his principal 4 . This 
document, signed by both parties, he appears to have read aloud 
in Court, after which he urged pardon in consideration of the 


edder zaken schal." This case is interesting because it contains a clause disavowing 
the half-brothers' responsibility for peace if it should happen that the son of the slain 
should wish to make trouble. 

1 Pauli, No. LXVI. "...Darup de erscr. rad...delede unde affsede vor recht : dat 
id ervede in de swertsyde, unde nicht in de spillenzyde... (i.e., not to females)." 

3 J. F. Hach, Das cdte Liibische Recht, Cod. I. xci : " Habebit autem ad expur- 
gandum se uiros xi. comprobatos, se ipso xn. existente. Si uero parentum uel 
amicorum carentiam habuerit, in quotcumque ei deficit, tot iuramenta iurabit. 
Jurare autem hoc debet quod parentes non habeat nee amicos qui ei astare possint. 
& in hoc perficiens erit in omnia." 

1 Statutes of 1728, Art. i. Tit. 8, Lib. iv. (quoted by Luppe, p. 53). 

4 Arckiv der freien und Hansestadt Hamburg: Stadt Archiv Cl. vn. Litr. Md. 
No. 5, Vol. 4, a. 2 (1607-10), 15 March 1609: "Dat Recht contra Hans Moller. 
Alss hedde sich des entliueden Steiff Vader, Vadernbroder, Fulbrodere und Schwegere 
mil Consent und vorweten dess Vorwundeten sich mil seinem Principaln...vorgelicken 
vnd vordragen." 



144 NORTH GERMANY AND HOLLAND 

fact that the kinsmen of the deceased were not prosecuting 1 . 
The Public Prosecutor retorts that : ' as far as the treaty was 
concerned the deceased kinsmen were over-persuaded to it, 
being poor simple folk,' and that there are still five brother's 
children who will not be content to leave matters as they are a . 
The counsel for the defence then declares that if any one wishes 
to prosecute, the kinsmen who have made the treaty must settle 
with him 3 . But the verdict is that the accused is to die by the 
sword 4 . 

In another case of the following year, the father of the slain, 
knowing that his son had given great cause of offence to the 
slayer, refused wergild and forgave the slayer 5 . The accused is 
acquitted. In the same year a ' treaty with the deceased's wife 
and nearest kinsmen' is pleaded, but the Public Prosecutor 
dismisses the treaty as invalid and worthless 6 . 

It is interesting to see that treaties with the injured party 
could still serve in Court as pleas for mercy 7 . From the point of 
view of the solidarity of the kindred the evidence they furnish is 
not convincing : the kindred of the slayer does not appear, even 
in the treaties, and the kindred of the slain appears to be limited 



1 " Vnd wolde demnha Im nhamen dess armen gefangen diewile desz entliueden 
Frunde nicht Clageden lutter vmb Gottes willen gebeden hebben seinen Principaln 
van der angestelten Pinlichen Clagen tho absoluiren..." 

'* " Wat dem vorlesenen vordrage anlangede wehren dess entliueden Frunde alse 
zympeln entfoldige lude dartho vorleidet... Diewile. ..noch 5 broderkinder Im leuende 
welche solches alles nicht wollen gudt sin laten." 

3 "woferne noch Jemandt vorhanden so Clagen wolden so mugten die Frunde so 
den vordrach vnderschreuen solches affdragen vnd damp geschlaten." 

4 "der Angeclagter...mit dem schwerde ahm leuende gestraffet werden soil." Cp. 
(for Bergedorf) Hans Kellinghausen in Zs. f, Hamb. Gesch. xm. p. 311 ; and Arch, 
des Amtes Bergedorf (Hamburg Archiv), Pars I. i, vol. i, Fasc. 2 (Criminalakten der 
vormaligen Landgerichte), 1595, 21 Dec. (Michael Kilm), and 1611, 29 Jan. (Harman 
Wobbe). 

8 "Vnd dan ock des entliueden Vader nhademe er erfahren...dat sin sohne nicht 
alleine ein Anfenger sunder ehr ock tho solchem nedderschlage grote orsacke gegeuen 
kein blodtgeldt begeret sunderlich mil seinem Principaln vorgelicken vnd vordragen." 

* Datt Rechtt contra Matthias Krabbenhouet. " Vndt wehre die vorlesene 
Vordragh Krafftlos und von keinem Verden." 

7 For cases (up to 1600) in which self-defence is successfully pleaded, and the 
slayer merely sentenced to pay wergild, see G. Trummer, Vortrage iiber Tortur, etc., 
in der Hamburgischtn Rechtsgesch. (Hamburg 1844), Bd 1- PP- 34<>> 34i> Anm. 2. 



NORTH GERMANY AND HOLLAND 145 

to very close relatives ; but it is highly probable that earlier 
documents would show larger groups of kindred. The neighbour- 
ing districts show more signs of the solidarity of the kinsmen in 
these matters. 

In 1567 the Council of Hamburg made an effort to persuade 
the two parishes Altenwalde and Groden to introduce the death- 
penalty for manslaughter. The inhabitants however object, 
on the ground that they are related to their neighbours of 
Hadeln, and that the law and usage in Hadeln is that the slain 
man can be paid for with money, and they have no more intention 
than the Hadeln folk of giving up this custom 1 . As a matter of 
fact the Archbishop of Bremen had eleven years before this 
(1556) issued a charge to Bremen, Verden and Hadeln, making 
death the penalty for manslaughter when committed by non- 
nobles, and forbidding the abuse that the kinsmen of the dead 
should be satisfied with money, and that the slayer's kinsmen, as 
well as the slayer himself, should be obliged to redeem him 
by the same method 2 . Since the people of Hadeln apparently 
succeeded in evading this new law, it is possible that the customs 
mentioned in their law of 1439 were still adhered to : " If it 
should be the case that the slayer is refractory and will not pay 
for the dead when he is prosecuted before the lord, then, firstly, 
he may be attacked in his life and goods, and thereafter his 
nearest cousins as far as the 4th degree, all those, who would 
benefit by or atone for the slayer (i.e. would receive wergild for 
him if slain, or contribute to one for which he had become 
liable) : these shall be attacked in their property, arson 
excepted 8 ." 



1 H. Joachim, Die Begriindung der Doser Kirche und des Doser Kirchspiels 
(Zs. des Vereins f. Hamburgische Gesch. xin. 1908), p. 19, quotes: "Datsulvige 
konnen se nicht ingaen und wylligen, dewyle se sick myt ohren naberen den 
Hadeleren befrundet, und de gebruck und id recht im lande tho Hadelen is, dat men 
den doden myt gelde kann betalen ; dat wyllen se na older gewaenheit och so geholden 
hebben." 

2 W. Wittpenning, Mittheilungen zum dlteren Criminalrerhte, p. 385, in Archiv 
des Vereins f. Gesch. und Alterthumer der Herzogthumer Bremen und Verden und 
des Landes Hadeln, Bd IV. (1871). 

8 Grimm, Weisthumer (Gottingen 1840-69), Bd iv. pp. 703 ff., Rechte von 
Altenbruch, Ludingwort und Nordleda (1439), 2. 

P. 10 



146 NORTH GERMANY AND HOLLAND 

In the districts under Hamburg control we find references to 
treaties with the 'entire kindred' well into the i/th century, 
but we suspect that this phrase has no longer the comprehensive 
significance of an earlier date. 

Thus, at the Coding- of Bergedorf Amt, the plaintiff in a slaying-suit 
prosecutes " in the name and on behalf of all the kindred of the deceased 
there present 1 ." Unfortunately their names are not given. In another case, 
of 1611, one Joachim Jiirgen has been fatally wounded, but makes peace 
with his opponent before he dies. The Court asks " whether any of the 
deceased's kinsmen were also present at the reconciliation, whereto is 
answered yes, that the mother, Hans Lutken and Vicke Brulle were 
present, and that Harman Wobbe (the slayer) promised Joachim Jiirgen 
a certain sum of money... which Joachim Jiirgen received." After Joachim's 
death, nevertheless, the 'kinsmen' prosecute him. The decision is that 
"since Harme Wobbe had come to terms with the deceased Joachim Jiirgen 
and his kinsmen, he could not be condemned to outlawry on that count 2 ." 

We see that a treaty with the kinsmen is still considered to 
preclude judicial action against the slayer, but on the other hand, 
in a community where the kindred still had their full rights 
in such matters, the hasty and informal treaty with the dying 
man would not be held binding on the whole kindred 3 . It is not 
till 1649 that the religious objections to these treaties are stated: 

" Since then, not only in the common written imperial laws, and in the 
Ordinances for the Criminal Court, Caroli 5, art. 137, but also especially 
in God's Holy Words, it is very earnestly ordered and commanded that every 
slayer should forfeit his life, and that whosoever sheds blood, his blood shall 
be shed in turn*...." 



1 Archiv derfreien und Hansestadt Hamburg: Arch, des Amtes Bergedorf, Pars I. 
Vol. i, Fasc. 2, 21 Dec. 1595: " Im nhamen vnd von wegen der gantzen vmbste- 
henden entlyuden frundtschafft." 

2 Ib. i6rr, 29 Jan. The Landleute ask: "efft ock von des verstoruenen frunde 
etliche mitt by dem vordrage gewesen darup geanttwordett Ja, datt de modur hans 
Lutken vnd Vicke Brulle darmitt by gewesen Alss der vordrach geschehen...vnd datt 
der Harman Wobbe dem Joachim Jurgen ein gewisse geldt tho geuende thogesecht . . . 

welche Joachim Jurgen enttfengen De landtlude sagen...dewile der Harme Wobbe 

sich mit den vorsteruenen Joachim Jurgen vndt sine frunden vordragen, datt he des 
wegen nicht konde fredeloss gelegtt werden." 

3 See Denmark, pp. 85 f. , supra. (The inhabitants of Bergedorf, as of all the 
' Vierlande ' district, are of Dutch origin, so perhaps much importance should not be 
ascribed to their customs in this context.) 

4 Hamb. Archiv, as above, 1649, J 



NORTH GERMANY AND HOLLAND 147 

III. Fries land. 

In Friesland we find the kindreds highly cohesive, and active 
in a variety of ways, to which the customary laws testify. In 
the eastern district, which later fell under the Counts of Olden- 
burg, a legal text of the I3th century gives us the following 
curious information : 

"This is also Frisian law : if the poor man raises a hat ( = banner) aloft, 
and cries : ' Ethelings follow me, have I not enough wealthy kinsmen ? ' all 
those who follow him and fight, thereby risk their own property, because the 
poor man is the least of all men ; he can involve the property of all his 
kinsfolk, but cannot push matters as far as to an ofledene 1 ." 

A I4th century source tells us that the leader of an attack (he 
who carries the ' hat ') pays all fines arising out of the fray, to 
his last penny, when his companions are called on to contribute, 
but that if his ' kin ' had previously proceeded to an ofledene 
with him in court, and the judge could testify to the fact, the kin 
of the leader were also liable 2 . Whatever the meaning of ofledene 3 , 
it would seem that kinsfolk were able to repudiate responsibility 
for a member of the kindred who led non-kinsmen (?) into a 
battle, unless he was notoriously poor, in which case they had to 
contribute ; and further that it was customary for the kindred to 
declare in public their intention to bear the expenses of a feud 
collectively surely an invitation to non-kinsmen to join in it 4 ? 



1 Riistringer Rechtssatzungen, Richthofen, Fr. Rq., pp. 121-2: " Thet is ac 
frisesk riucht : sa hwer sa thi blata enne hod stekth and sprekth : ethelinga folgiath 
mi ; nebbe ik allera rikera frionda enoch ? Alle tha ther him folgiath and fiuchtath, 
thet stont op hiara eina haua, thruch thet thi blata is lethast allra nata ; hi mi allera 
sinera frinda god ouir fiuchta, hi ne mi hit thach to nenere ofledene skiata." 

2 Fr. Rq. (Recht der Riistr. aus einer hs. von 1327), p. 540, 37: " Alle thet ma 
fluent domliachta di and bi skinandere sunna under up haldene hode, thet skil thi 
beta ther thene hod dreith, alsa longhe sa hi enigene pannig heth. Ac ne mi thi 
hodere ther nawet al beta, sa skilma thene fiuchtere seka, and thi skil mithi beta, hit 
ne se thet ken anda liodwarue mith him to there ofledene gengen se, and thi redieua 
thet hlia dure, sa skil thet ken mith him beta." 

3 See His, Strafrecht der Friesen, pp. 62 ff. 

4 These laws seem to have remained in force until the end of the i6th century, 
in spite of the protests of the Counts of Oldenburg. Cp. C. Borchling, Die dlteren 
Rq. Ostfrieslands, Aurich 1906, p. 32. It appears from a law of Brokmannaland 
(also in East Friesland) that the judge could refuse to sanction an ofledene (Fr. Rq. 
Brokmerbrief, p. 157, 46). 



148 NORTH GERMANY AND HOLLAND 

It is in the same districts that we find a clear enunciation of 
the old tribal principle, that there can be no litigation within the 
kindred. A dispute between father and son, between brothers, 
between father's brother's son and mother's sister's son, mother's 
brother's son and father's sister's son, cannot be decided in court 
in the ordinary course of justice, for " all the common kinsmen 
shall settle it, or it shall be decided with oaths 1 " (i.e. of kinsmen 2 ). 
It is to be noted that the first cousins mentioned are not blood- 
relatives, are in fact not related to each other at all : a common 
relationship suffices to bring them within the kindred. 

There are many references to wergild in the Frisian laws, all 
of which are complicated by our uncertainty as to the coinage 
referred to 3 . However, by concentrating our attention on the 
actual distribution of the wergilds and not on their relation to 
each other, we can avoid most of the highly disputable questions. 
In most cases the liability of the kinsmen for wergild is declared 
to be only secondary, being conditional on the slayer's poverty. 
But, as von Amira 4 points out, the emphasis laid on this 
point allows us to conclude the prevalence of the contrary 
practice. 

In East Friesland the clearest wergild regulations are contained 
in the Low German Butjadinger Kuren of 1479 : 

" 5. Every man who was not present at the quarrel and fight, shall pay 
machtal (kindred compensation), as is hereinafter written : this the first, that 
the brother shall redeem and free his property with 20 white marks. 

6. If it should be the case, that someone slew a man on the ale bench 
or in the inn,. ..the 'brother's child' (?i.e., first cousin) shall compensate for 



1 Rlistr. Rechtssatzungen, Fr. Rq. p. 123 : "Thit is ak frisesk riucht, theter ne 
mi twisk thene fader and twisk thene sunu, twisk thene brother and twisk thene 
otherne, twisk thene fidiran sunu and twisk thene modiran sunu, twisk thene ernes 
sunu and twisk thene fethan sunu, ther ne mi nen stef tha nen strid twisk risa, nen 
asyga dom tha nen aldirmonnes Ihiene, buta thet skilun alle tha mena friond skifta, 
ieftha thet skilma al mith ethon riuchta." Cp. p. 540, 31. 

3 Cp. the Danish samfrcender ed, p. 99 supra. 

8 Cp. H. Jaeckel, Zs. der Sav. Stiff. Bde 27, *8 ; Ph. Heck, Die altfr. Gerichts- 
verfassung (1894) and Die gemeinfreien der Karolingischen Volksrechte (1900). Also 
His, Strafrecht der Friesen im MA. (Leipsic 1901) and in Zs. der Sav. St., Bd 28, 

PP-439 ff - 

4 Erbenfolgc und Verwandtschaftsgiicderung nach den altniederdeutschen Rechten 
(Munich 1874), p. 155. 



NORTH GERMANY AND HOLLAND 149 

him with 15 white marks, the 'right third' [third cousin] with 5 white marks, 
the fourth (fourth cousin) shall be quit 1 ." 

Unfortunately, as the second case is different from the first, it would be 
rash to make certain that the payments in all cases were : 

1. Brother 20 white marks. 

2. First cousin 15 

3. [Second cousin 10] 

4. Third cousin 5 

but we can be fairly certain at any rate of the contributions of the last three 
classes. 

Only in West Friesland do we find any full regulations for 
the distribution or payment of wergild among the kin. Here 
also the money-reckoning is fairly simple. The regulations are 
contained in the Allgemeine Gesetze des westerlauwerschen Fries- 
landes, and may be summarized as follows : 

The liability of the slayer's kindred is primary. 

There appears to be an initial payment of 2 pounds 2 , but it 
seems as if this was paid by the injured party, as a pledge 
of good faith. 

The wergild is divided into two parts : (a) 8 pounds (pond) 10 ounces (enze) 
and 13! pence (penning), due to the heirs of the slain man (and payable 
by the slayer and his father?); and (V) 4 pounds 5 ounces and 6f pence 3 , 
collected among the kindred of the slayer and paid to the kindred of the 
slain. This latter part is called menteelor meitel. The proportions between 
the two (2:1) appear to be the same all over Friesland 4 . The menteel is 
divided as follows : 

pond enze pen. 

1. [male descendants of father] i.e. brother ... i o o 

2. \inale descendants of grandparents on both sides 

(exclusive of father)] : 

a. father's brother (fedria) 9 o 

b. mother's brother (eem) 6 o 5 



1 Richthofen, Fr. Rq. p. 545. Cp. His, op. cit. pp. 223-254. 

8 p. 410, i. " Dat is riucht, al deer di frya Fresa ene oderne to dada slacht 
ende dat hine ielda schil, soe aegh hi him to biedane twa pond to iaen, dat hy riuchta 
ielda ontfaen wil." Richthofen takes iaen as ievane, to give, but it seems to be more 
consistent with the sense, if I understand it rightly, to read it as from ia, to acknow- 
ledge. 

3 There are 20 pennings to the ounce, and 12 ounces to the pound. The total is 
thus 1 3 J pounds. 

4 See, however, Jaeckel, Zs. der Sav, Stift. 1906, p. 280. 

5 een hael pond. Brunner, p. 25 (owing to a misprint?) says 4 ounces. 



150 NORTH GERMANY AND HOLLAND 

pond enze pen. 

3. [male descendants of 4 pairs of great-grand- 

parents (exclusive of grandparents)] (i.e. 
great-uncle, first cousins once removed, and 
second cousins) : 

<*. paternal 

(a) descendants of father's father's brothers and 

sisters 3 8 

O) descendants of father's mother's brothers 

and sisters 3 8 

b. maternal 

(a) descendants of mother's father's brothers 

and sisters 2 5 

03) descendants of mother's mother's brothers 

and sisters 2 5 

4. \male descendants oj "8 pairs of great-great-grand- 

Parents^- (exclusive of great-grandparents)] 
(i.e. first cousins twice removed, second 
cousins once removed, and third cousins) . 

a, the $ fangen on father's side, descendants of 

(a) father's father's father's brothers and sisters I 18 

O) mother's I 18 

(y) mother's father's I 18 

(d) mother's i 18 

b. on maternal side 

(a) mother's father's father's brothers and sisters I 17 

O) mother's i 17 

(y) mother's father's i 17 

(8) mother's i 17 

4 5 6 



We notice that it is a singularly clear and consistent statement, having 
strong affinities to the North Frisian wergild-division. As in the latter, 
there are 15 classes of recipients, counting all subdivisions 2 . 



1 Richthofen (Wb. s.v. meniel) does not appear to include the 8 fangen in his 
reckoning, but the words of the text are quite clear, p. 411 : "nu aghen oen der 
fadersyda dae fyouwer fanghen elker lyck xxxvin penningen....Nu sinter tredlingan 
fyower fangen fan synre moder syda, nu agen da fangen elker lyck xxxvii. pen- 
ningen etc." It thus appears that a tredling, thredkniling etc. is a person related in 
the fourth degree, not, as Richthofen says (Wb. s.v. thredkniling, thredknia, thred- 
ling) in the third degree. See Brunner, Wergild und Sippe, p. 26. 

2 v. Amira, Erbenfolge, p. 162. 



NORTH GERMANY AND HOLLAND 151 

If there is no brother living 1 , his son or a sister's son takes his share; 
and so with the uncles. If none of these recipients exist, the share falls to 
the heir, but whoever actually receives it has to swear the oath of peace. 
Whoever receives a share (for distribution) and does not share it with those 
equally related must give back twice the amount and pay a further fine 
of 2 pounds. The sum should be paid in three equal instalments, 21 nights 
between each (and apparently the mentele last ?), but it would seem that the 
whole sum may be paid on the 63rd night. Before that time the slayer shall 
warn the kinsmen liable for contributions, each in his own home, in the 
presence of two witnesses, who can be appealed to in case of a dispute, which 
can come before the magistrate (Jrana). After this the final reconciliation 
takes place, at which apparently a representative of each class kisses the 
slayer on swearing the oath of peace, thereby wiping out the feud. These 
representatives appear to receive a premium of 4 pence out of the sum 
destined for their class of recipients 2 . 

As in the Swedish and Danish laws, the problems connected 
with the distribution and collection of the wergild are thus fully 
dealt with, an indication that the custom had not fallen into 
desuetude at the time when the law was committed to writing. 

The only other sets of regulations which throw much light on 
our problem are those contained in the Hunsingoer Kuren of 
1252 s , and in the Fivelingoer and Oldampster custumal, of which 
the extant MS. dates from the I4th century 4 . 

We will consider the Hunsingo text first 8 . It begins ( 40) 
by attributing a wergild law to Our Lord, which is interesting 
as indicating that the Frisian Church was not hostile to the 
institution 8 , and goes on to say that wergild was later fixed 
at 40 marks, to which 6 were added for the friunden kinsmen. 
It has been pointed out by von Amira that in Old Saxon and 
Old Frisian law the wordfriund, kinsman, does not usually include 



1 Richthofen (s.v. mentele) assumes that only the eldest brother receives or pays 
this share, but the analogy of the Scand. and North Frisian laws would lead us to 
suppose that brother stands for ' brothers,' ' uncle ' for uncles, and so on. 

2 " Nu aghen da eeftersusterbern oen der moeder moeder syda fyf penningen twae 
eynsa etc. Nu agen dae deer dyne ferdeed swared, dyne fyaerda penningh off toe 
nimen, hit ne se dat him syn ewenknee kestighia ende gwe : tzies du hor du swerre, 
ende lethe wessa al euendeel. Nu sinta ieta to swaren acht freededen...." 

8 Rq. p. 336, 4 off. 

4 Ed. by M. de Haan Hettema, Het Fivelingoer en Oldampster Landregt (1843). 

B Huns. Busstaxen, 40 ff., Fr. Rq. p. 336. 

6 Cp. the part played by the priest in the deed of 1443, p. 157, infra. 



152 NORTH GERMANY AND HOLLAND 

the relatives of the first degree 1 , and the context shows that 
in this case it must be taken as meaning ' kinsmen of the second 
and more distant degrees.' The payments seem to be as follows : 

marks blud fiardeng 
Father (or brother 2 and sister) 10 

Father's brother 2 

Mother's brother i 

Forma bernig (first cousins (and 

nephews?)) 3 I 

Second cousins (other susterberri) ... \ 

Thredda halua knileg, second cousins 

once removed 6 

Thredda [knileg], third cousins ... I 

15 6 i 



i.e. approximately a third of the whole wergild of 46 marks 4 . 

The absence of a class of first cousins once removed, to correspond to 
class C 2, can be best explained on the theory that wergild shares are not 
given to males whose fathers participate 6 i.e. not to the sons of uncles 
and that the forma bernig refer to the sons of aunts^ while the second 
cousins once removed refer to the sons of female second cousins only. In 
this case the table would be perfectly symmetrical 6 . 

1 Erbenfolge, p. 145. 

2 Apparently a brother is not liable to pay wergild until a second slaying, 42, 
but cp. v. Amira, op. cit. p. 157. 8 But cp. v. Amira, op. cit. p. 159. 

4 v. Amira reckons the 6 blud i fiardeng as \ mk, but his method of reckoning 
seems to have the difficulty that class C i pay more than class C 3 (^ as against ). It 
seems that 5 fiardengs go to the while mark, of which 16 = 20 marks, Jaeckel, Zs. der 
Sav. Stiff, xxx. p. 98. In this case r fiardeng would be equal to -fa of a mark. The 
contributions of classes B and C cannot amount to more than 5^ marks, instead of the 
6 marks of the previous paragraph. Brunner (p. 29 Anm. i) suggests that the missing 
half mark may be paid by classes B 3 and C i 3 on the mother's side, but is it not 
also possible that the historical 40 is not meant to apply exactly to actual conditions 
as portrayed in 41 ? Cp. the other inconsistency re uncles, p. 153 infra. 

6 The secondary nature of the brother's liability, if the father pays, seems to 
confirm this view. 

8 It could be tabulated on the same lines as the Westerlauw. wergild : 
i. Father and his descendants, i.e. brother. 

i. Male descendants of grandparents (exclusive of i), i.e. uncles, and first 
cousins (sons of aunts). 

3. Male descendants of great-grandparents (exclusive of i), i.e. great-uncles, first 

cousins once removed, second cousins, and sons of female second cousins. 

4. Male descendants of great-great-grandparents (exclusive of 3), i.e. great- 

great-uncles, first cousins twice removed, second cousins once removed, 
and third cousins. 



NORTH GERMANY AND HOLLAND 153 

It will be seen that the share of the father's brother stands to that of the 
mother's brother in a ratio of 4 : 3, though in 40 the paternal kindred are 
said to contribute twice as much as the maternal. Possibly, as we have 
already suggested on the previous page (note 4), the historical 40 is not 
meant to apply exactly. We are told that the sister's son (of the slain) 
may act as plaintiff in the slaying-suit, in which case he receives the sum of 
io blud 1 , a piece of information which would be useful if we could establish 
the value of a blud. The liability of the sister is also to be noted*. 

We now pass to the Fivelgo clauses 8 . The provisions of the 
first paragraph may be tabulated as follows : 

pond enze pen. 

1. Brother 300 

2. first swira (uncles and first cousins ?) II 4 

3. second swira (great-uncles and their descen- 

dants?) 5 12* 

4. third swira (great-great-uncles and their de- 

scendants?) 2 16 

4 s i 12 



The total wergild in this case would therefore probably be 12 pond 4 enz. 
16 pen. 

The paragraph adds that half the meitele is paid for the maiming of 
6 limbs, and full meitele for outrages on women 6 . Half-brothers, etc. pay 
their full share of meitele. A man can escape liability for his share of 
meitele by one oath, unless relationship can be proved against him 7 . Widows 
and children under age, priests 8 and nobles (walberan, Low G. text welge- 
boren) pay no meitele. 

The next paragraph I would regard as independent of the preceding, for 
it proves on examination to be practically identical with the second Hunsingo 
clause, though somewhat less condensed ; it omits the paragraph offering 

1 41. 2 42, " alsa stor sa thiu suster ac tha brothere." 

3 Ed. by M. de Haan Hettema, Het Fivelingoer en Oldampster Lattdregt, pp. 1 12 ff. 

4 The third sum is given as 5 enze i scilling. From the analogy of the Hunsingo 
regulations we might assume that this sum was half the preceding ; and if we take 
the scilling as equal to 12 pen. (one of its many possible values, see Richthofen, 
Wb. s.v. enze) we obtain this result, and the next sum, stated in enze and pen., works 
out at half 5. 12. There seem therefore sufficient grounds to justify the adoption of 
this reckoning. 

5 The/iTwoTis here stated to contain 18 enze. 

8 5 : "sex lithe rekat half meytel. Tlio tha nedmonda herder ful meytele." 
7 I am in doubt about the meaning of " Thredkingis meitele is ma niar to betiugane 
dan to vnswerane," but I presume it might signify that one man's oath for the ex- 
istence of kinship between a supposed relative and the slayer weighs more than one 
oath against it ; cp. Richthofen, Wb. s.v. ni (7). 8 But cp. Rq. p. 320 ( 2). 



154 NORTH GERMANY AND HOLLAND 

a historical review of wergild, but otherwise the 10 marks paid by the father, 
the distinction between father's and mother's brother, etc. all reappear, and 
it repeats, more emphatically, the statement as to the sister's liability, which 
we may compare with the following passage in the Hunsingoer Busstaxen : 

43. " When the outlaw slays a man, wergild shall be paid for him, then 
each ' knee ' (of kindred) shall stand by the other, the niece with the nephew, 
if she have borne no warrior (son) : this wergild is called a ield-stopa. 
44. When the mother is a widow, and the daughter an orphan, the poor 
defenceless orphan needs not to give any mettele 1 " 

This, with the Swedish law of Helsingland, is almost the only 
mention of the primary liability of women (other than heirs) to 
wergild, though we have seen reason to suspect that their actual 
participation was more frequent than the laws allow. 

In the case of slayers too poor to pay their whole liability in 
wergild we find various regulations in force. In the West, such 
a slayer is bound to produce one-third of the wergild, on pain, 
apparently, of outlawry, and also for the fine for breach of peace, 
while the kinsmen "as their custom has been" give the other 
two-thirds, i.e. twice their normal contribution 2 . In the East the 
slayer is bound to produce the wrield 3 , whatever that may mean, 
while the kinsmen pay 20 marks. 

In two of the laws we find the interesting provision that an 
outlaw cannot be between two ' lands ' : but that the relatives 
living in the ' land ' where he is accused shall pay the fine for him 4 . 

The oath-helpers of the kindred appear frequently in Frisian 
law, but are most explicitly alluded to in the Western districts. 

A man can produce twelve oath-helpers of his kindred to clear himself of 
accusations of stealing 6 , of complicity in crime 6 , of sheltering an outlaw 7 , 



1 Fr. Rq. p. 336. 

2 Huns. Kliren of 1252 (Fr. Rq. p. 329), 9 : " Umbe thene blata, gef hi enne 
mon sle, thet thrimene geld, and thi frethe lidzie uppa sine halse ; thet twede geld 
geue sine friund, as er syde was." So also in 1448, Fr. Rq. p. 322 ( 19, 21). 

3 Rq. p. 116 (Rustr. Ktiren). Richthofen translates wrield ' zugabe zum wergeld,' 
but there is no evidence for an ' additional gift ' in the Frisian laws. Possibly it refers 
to the/orma ield. 

4 Ems. Pf. schuldb. 24 (Rq. p. 200) and Brokmerbrief, 132 (Rq. p. 169) : " Hir 
ne skel nen freta wesa tuisca londum ; fait thi tichtega oppa thene freta, sa felle tha 
holda ther fore." 

8 Fr. Rq. (Huns. Kliren of 1252), pp. 329-30, 19. 
Ib. p. 328, 5. 7 Ib. 9. 



NORTH GERMANY AND HOLLAND 155 

of falsely accusing (?) a judge 1 . But besides oath-helpers, Frisian law 
knows of witnesses (prkeneri) of the kindred, and a man suspected of secret 
manslaughter has to clear himself with his four 'fachten' descendants of 
his great-great-grandparents and with 72 witnesses within his kin- 2 . To 
repudiate an accusation of having come to fisticuffs in church also needs the 
support of 72 kinsmen of the four 'fachten 3 .' 

Guardianship, Another point in which the earlier Frisian 
laws show considerable solidarity of the kindred is in the matter 
of guardianship of orphans. Before he can alienate his ward's 
property the guardian must have the consent of ' all the kins- 
men 4 .' He himself is related to his ward on the paternal side, 
but when taking over his charge he must pledge ' green land ' to 
the mother's kinsmen for the movable inheritance of the ward 5 . 

In East Friesland Count Edzard's Landrecht, from the 
beginning of the I5th century, still shows many traces of the 
solidarity of the kindred, though great efforts have evidently 
been made to bring the law into accordance with the spirit of 
the times. The following passage from Wicht's i8th century 
edition of the Landrecht (which was still technically valid at the 
date of issue) may serve as typical : 

"Although it be a custom that a man shall and may redeem his neck with 
money, when he has slain a man, as is said before ; yet such statutes from 
which one can know beforehand how one can pay for the life of a man are 
of small value... for everywhere there are presumptuous folk who heed not the 
money if it be their wish to slay a man. For that reason the laws are much 
better arranged, if one does not know from them, with how much money one 
may redeem one's neck, but if it is left undecided, when a man is slain, 
whether and how the slayer may secure peace from the ruler of the country 
or the relatives. If the ruler of the country or the relatives will not allow 
themselves to come to terms for the wergild, the slayer must die 6 ." 

However in ch. 24 it seems to be indicated that only the heir receives the 
wergild : " The slaying may be paid for or compensated for in three instal- 
ments : The first in money, the second in cattle, the third in cloth. The 
nearest of the persons ' fully ' related to the slain takes the wergild. If 



1 Ib. 16. 

2 Rq. p. 426 (Allgemeine Kiiren des Westerlauwerschen Frieslands, 5): "soe 
schillet hiase sikria mit hiara haudpapa ende mit tuam frya foegheden, ende mit hiara 
fiower fachtum, ende mit twa ende sauntige orkenen binna hiare kinne." 

3 Rq. p. 407 (Allg. Gesetze des Westerlauwerschen Friesl.), 5. 

4 Ems. Pfenningschuldbuch, 67, Fr. Rq. pp. 196-7. 8 Ib. 8. 
6 v. Wicht, Das ostfriesischt Landrecht (Aurich n. d.), p. 677, Lib. HI. cap. 11. 



156 NORTH GERMANY AND HOLLAND 

however such a one does not exist, then the nearest of those half related 
takes it 1 ." The law adds that the kinsmen of the slayer used to be obliged 
to help in the payment 2 . 

For West Friesland the Groningen Landregten van Stad en 
Lande, of 1448, still state : 

" When a man is slain, the kinsmen shall not be liable for more than the 
two-thirds of a wergild, and for the third part the slayer's neck shall be at 
stake 3 ." 

In 1467 it is decided at Groningen that when peace is sworn between 
two parties, it shall include the father, brothers, children, and first cousins, 
and the husbands of any of these persons. If any more distant kinsman 
wishes to be included, he must be mentioned by name in the deed of 
reconciliation 4 . This indicates a considerable solidarity, in spite of the 
restriction of the bounds of the kindred. 

In 1596 we still find the son appearing before the court with 
his brothers and sisters, together with the 'whole kindred,' as 
plaintiffs in a case of manslaughter 5 . It was not till 1679 that 
these districts finally seem to have adopted a death-punishment 
for manslaughter 6 . In a case of self-defence the slayer is to be 
free of all liability. 

1 Ib. pp. 679-80, cap. 24: " Der nechste von denen voll-besippeten empfangt das 
Geld. 1st aber keiner derselben vorhanden, so nimmt es der nechste von denen 
halb-besippeten." 

2 Ib. p. 114. 

3 Groningen Archief, H.S. in fol. no. 16, p. 17 : " Wanneer ein mensche is doot- 
geslagen, so sullen de ffrunde niet hoger beswaret wesen, dan de twedeel van ein 
man gelt, vnd dat dardedeel sol staen op den dootslagers hals." 

4 Warfsconstitution en Oordeelen, tot en met het Jaar 1601, bijeenverzameld door 
Mr H. O. Feith, Groningen, 1863, p. 104 : " Item so waer ene bevredinge genomen 
wort tusschen twen parten, den vrede sullen holden vader, broders ende kinderen, 
vorenbaren ende zwagers, de so nae sint. Ende wolde yemant vorder van den vrenden 
bevredet wesen, den salmen by name jnden vredebreeff mede setten ende scriuen laten." 

8 op. cit. 1596, 24 May (p. 196) : "Inder scheelinge tusschen den Erbaren Walco 
Itens vnde siner broederen vnde susteren, sambt gantser bloetuerwandtschap clegeren 
ther Ener, vnde den ock Erbaren Tydde P'rocme beclegeden anderdiels." Cp. 
Groningen Archief, Rechterlijke Archieven N r III. i. i. i fol. 8, where as late as 
1618 the 'father and kinsmen' of a slain man declare the slaying in Court: (17 Aug.) 
" Opt' versoock van den vader vnde vrunden van hindrick harmens nedergeslagen van 
Albrordtt Cordes...moordt geroepen sal worden." 

6 Landrecht van Hunsingo, Fybelingo . . .op eenen gemeynen Land-dagh van den 
Stolen der Stadt Groningen ende omlamlen geanesteret, Groningen 1679, P- I3 3 
Bk vn. i. It is interesting to note that a legal text-book of 1778 still prescribes 
wergild in cases of accidental slaying, Aanleiding tot de eerste Beginselen der Groningen 
Regtskennis, pp. 357 f. 



NORTH GERMANY AND HOLLAND 157 

A remarkable piece of evidence for the solidarity of a slain 
man's kindred has been preserved in a deed from East Friesland, 
dated 1443. It is a declaration that the widow and 28 male 
persons, the 'common kinsmen' of Enno Abekena, standing 
round his open grave 1 , had each promised a contribution of 
money or land to any one who should kill Ippo, Enno's slayer. 
That such a public and united incitement to manslaughter on 
the part of the slain man's kindred was not regarded as anything 
shocking or unusual is evidenced by the fact that a priest 
writes the deed, and that the nuns of Dichusen acted as 
witnesses 2 . 

An entry in a register of fines kept by the town of Emden 
in the I5th century reveals some interesting facts: 

1467. "Geltat Nonnena...must prove. ..that there is no relationship nor 
kinship, nor ever has been, between him and Siwet's father of Twixlum : if 
he cannot accomplish this, then Siwet's 'kinsmen's deed,' to which Bold 
Hacken and Onneko of Lockwart witness, shall take effect 3 ." 

We must suppose that Geltat Nonnena has refused to share some burden, 
such as the payment of wergild. The 'kinsmen's deed' (vrunde breff] is 
probably a contract binding the kindred to reciprocal help, like the slachtes 
breve of the Dithmarschers. 



1 In Denmark, too, it was usual to enter into wergild negotiations with repre- 
sentatives of the slayer at the grave-side. 

2 See Appendix II. No. 8. Such an instance of solidarity encourages us to place 
some weight on the frequent inclusion of 'kinsmen ' in treaties : cp. E. Friedlaender, 
Ostfr. [frkundtnbuch, n. pp. 711 ff. No. 1753 (1409): " twisschen Kenen, Hisken 
unde Ennen vnd eren vrunden"; i : "Item alse Kene...claghet uppe Hyszken van 
Emeden, uppe. ..Ennen van Norden und uppe erevrund" "Kene...sete mit erne und 
synen vrunden in ener geswornen sone " ; p. 713 : " item dat syne vrund den Emederen 
affgheslaghen hebben 6 man...Kene antwordet dat de gheschen sin in opener veyde " ; 
p. 714: "so schall he den doden dorch Code und den vrunden beteren," Bd I. p. 415, 
No. 455 (1436): " vor [uns] is gekomen Frederik Plump mid sineme sone Martinse 
unde anderen sinen sonen unde frunden..."; No. 336, p. 299 ff. (1426). Cp. also 
A. Driessen, Monumenta Groningana, pp. 193 ff. No. LV. etc., and Ehrentraut in 
Friesisches Archiv (Oldenburg), I. pp. I26f., 145, 509-11. 

8 " Eine BrUchteregister des Amtes Emden," hrsg. von G. Liebe, Jahrbuch der 
Ges. f....Altertiimer zu Emden vil. (1886), p. 82. (The transcribing of the names 
does not always seem above suspicion), 1467 : "Geltat Nonnena... schall bewisen...dat 
daer nene maechscap offte sibbe sy edder gewesen hebbe twischen erne und Siwets 
fader to Twixlum ; offte he des nycht doen mach, so schall Siwetes vrunde 
breff, dar Bold Hacken und Onneko Ukena to Lockwart inne tugen, vortgangh 
haben." 



158 NORTH GERMANY AND HOLLAND 

Several other entries show that kindreds were on occasion bound over to 
keep peace with one another, as thus : " At Lopsum, Baelda and his kinsmen 
are to keep the peace with Her Haryngh and his kinsmen 1 ." 

For the i6th century the East Frisian Court records show 
that the slayer usually paid the wergild unaided, and that 
occasionally, at any rate, only the nearest kinsmen of the slain 
received wergild. Thus in 1530: 

" Wyppe Keren has paid the third and last instalment on account of the 
slaying of the deceased Eylart of Wenningermoer, Cordt's brother, in such 
fashion that Cordt thanks him and forgives all which happened 2 ." 

But the following case may be equally characteristic : 

He we of Erklum has been killed by Baiter of Leer. Egerick Beninga, 
the Drost or Provost, is chosen arbitrator by both sides. The wergild is to 
be 1 10 florins, to be paid in three instalments, the first in money, the second 
in linen, and the third in cattle. " That the slaying has not been compensated 
for so highly as has previously been the case in that kindred the kinsmen of 
the deceased Hewe have kindly overlooked in Baiter by the request of the 
above-named arbitrators 3 ." This case has a sequel in 1532, when the 
brother of the slain appears in court together with the other kinsmen and 
the guardians of the children, and declares that he has been paid in full 4 . 

The chroniclers, of course, only deal with the noble families, 
but their evidence is all in favour of cohesive kindreds. In the 
Chronicle of Abbot Emo (d. 1237) of Witte-Wierum in West 
Friesland, we are told that because a man was slain in an attack 
on the monastery of Schildwolde, the relatives of the slain began 
burning down the houses of the relatives of the Prior of the 
monastery 5 . 



1 Ib. p. 86, see also pp. 27, 31, 72, 77. 

2 Aurich, Staatsarchiv, Msc. A. 24, fol. 153 (a). "Altera Cantate hefft wyppe 
heren bytaelt den derden und latesten tertnyn van wegen des nedder slags szalig 
Eylarts vp wenyngermoer Cordes broder, also dat Cordt one bydancket vnd doeyt 
vorlatung alles wes daer geschen ys...." 

3 Ib. A. xxxj. (fol. 152). "Dat nhu de Nedderslach szo hoech nicht als In 
vortzden vth dem geslechte geschen gulden ys worden, hebben szaligen hewen 
frunde, dorch bede, der vorschrenenen dedingesluede, Balthe tho guede gelathen." 

4 Ib. fol. 135. " Am achten dage nae pinxteren synt erschenen de broder Meloff (?) 
to Eskulum een broder saligen Howen mit sampt der anderen vrunden unnd 
vormunderen der kynder vnt hebbea bekandt dat de sutnma als de doetslach yn 
frundtschop ys begelacht dat se synt van den borgen to vreden gestalt den Ersten 
pennick mit den lesten Yn bywesent Eggerich beningha droste to Lerort," etc. 

6 Mon. Germ. S. S. 23, p. 507. 



NORTH GERMANY AND HOLLAND 159 

Menko's chronicle describes how in 1270 Rodbernus of 
Farmsum, a noble, fought successfully, solus cum sua parentela, 
against the three neighbouring districts of Oldampt, Emsigerland 
and Reiderland, whose warriors retreated confusi et erubescentes ; 
and how only the fear that himself and his parentela would be 
completely impoverished by the compensation for damages 
demanded by his own neighbours led him to yield by leaving 
his stone house to be destroyed 1 . Another story shows Egbert 
and his brother fighting, calling to their aid their fratrueles 
Rodulf of ' Niurech ' and Menzo of ' Amnem ' and their patrueles 
in a complicated and very destructive feud with the Gelekonidae 
and Papelingi 8 . 

The continuation of this chronicle (1276 1280) constantly 
speaks of frays in which each side fights cum omnibus con- 
sanguineis et amicis*. In 1295 we find the kindred (parenteld) 
of the Menalda at Helium carrying on feuds with four other 
kindreds, the Tadema, the Rondage, the Hagginga and Snelguere, 
and with the Merethia 4 . Two centuries later, in 1486, a West 
Frisian charter shows the kindred of the Haringsma carrying on 
a feud on behalf of the monastery of St Odulf at Staveren 5 . 

IV. Drenthe*, and Non-Frisian Holland. 

The term ' non-Frisian Holland ' is something of a misnomer, 
for it is generally agreed that there is a leaven of Frisian blood 
all through the Northern Netherlands. The description must 
therefore be taken to mean nothing more than those parts of the 
country where Saxons or Franks, or both together, finally pre- 
dominated, i.e. in Western and Southern Holland. There can be 
no doubt that a very great mingling of peoples must have taken 
place, especially in South Holland, along the banks of the Rhine. 

The question of wergilds in mediaeval Holland has been so 
fully dealt with by Brunner 7 that it will not be necessary for us 



1 M.G. S.S. 23, p. 559. 2 ib. pp. 5*3-61. 

3 M.G. 23, pp. 561-72. Cp. p. 569. 4 Ib. pp. 568 f. 

5 Quoted by His, Strafrecht, p. 67. 

6 Drenthe, as being under the Count of Holland, is included in this section. 

7 "Sippe und Wergeld nach altniederdeutschen Rechten," in Zs. der Sav. Sttft. 
Bd in. 



160 NORTH GERMANY AND HOLLAND 

to go into details. In the counties of North and South Holland 
and Zeeland, owing to the fact that the whole of the slayer's 
property fell to the Count of Holland, the kindred were liable 
for the whole wergild. There was no fixed wergild maximum. 
The contribution of each kinsman was proportionate to the 
amount of wergild, and that it could be a very heavy burden 
may be deduced from the number of ' privileges ' granted by the 
Count in the I4th century, in which the maximum contribution 
for the outer limits of the kindred was fixed. Nothing could 
be better evidence of the actual survival, in practice, of the 
liability of the wider circles of kindred than these 'privileges.' 
Incidentally, they afford some evidence as to the proportions in 
which wergild was divided. The Count limits the contributions 
of the cousins as follows 1 : 

1. (a) each first cousin (moeyensoeri) 10 schellingen 

() first cousin once removed (ouder 

moeyensoeri) 10 

2. (a) second cousin (aftersusterkynf) ... 5 
(V) once removed (aftersus- 

terkynt in eenen halven ledena) 5 

3. (a) third cousin (eerste lit}"*- 3 

(b) once removed (vyfde lit)* ... 3 

It will be seen that the above does not deal with the contri- 
butions of the nearer relatives. Brunner holds that these also 
would be reduced in proportion, but since we find wergilds of 
varying amounts even after these ' privileges,' it seems that the 
nearer kinsmen must have had to meet the difference, whatever 
it was, between the sum of the above contributions and the total 
amount of the wergild 8 . 

But the best evidence for the actual distribution of liability or 



1 Miens, Greet Charterboek, II. p. 303, 9 June 1303: cp. II. p. 271 a, etc., and 
Keurb. v. Haarlem, 45. In other charters the third cousins receive 2$ sch. ; so at 
Dordrecht (S. Holland) P. H. van de Wall, Handvesten...der stad Dordrecht (r deel, 
1770), p. 118 (1303), and Haag (1377), Kennemerland (1404-5), and Waterland, 
cp. Brunner, p. 81. 

8 For explanation of these terms see Brunner, op. cit. pp. 82-3. 

8 In Utrecht, any citizen who received larger contributions was to be expelled till 
he made restitution (1366); Miiller, Rb. der stad Utrecht, p. 79. 






NORTH GERMANY AND HOLLAND l6l 

claim for wergild is afforded by the custumal of the town of Briel 1 
in Zeeland, compiled by Jan Matthijssen early in the 1 5th century. 

Four second cousins, one from each of the four vierendeele* of the 
kindred, represent the kindred in the public declaration of the slaying, and 
in the negotiations for peace. The wergild, as is usual in this province as 
well as in those of North and South Holland and Drenthe, is divided into 
three equal parts : moetzoen^^ for the plaintiffs (the four second cousins 
above-mentioned), erfzoen, for the heirs, whether male or female, and maech- 
soen, for the kindred in general. This maechzoen is divided into four equal 
parts, of which one is handed over to each of the four second cousins 
above-mentioned, who subdivides it among his own group of kindred, 
according to their number. The kindred is further subdivided into 
achtendeele i.e. it includes third cousins. As in all Dutch law, the 
mother's kindred and the father's kindred participate equally. The principle 
on which the wergild is divided is somewhat complex, but shows a complete 
comprehension of the parentelic method of reckoning kinship. The minimum 
share, that of the third cousin, is taken as the norm. If we call this share x, 
the brother gets 8x, the first cousin 4r, the second cousin 2x, and the third 
cousin 4 x. But the brother does not simply take his share out of the whole 
amount : he takes two shares out of the amount due to each vierendeel ; the 
first cousin takes two shares out of each of two vierendeele, the second cousin 
two shares out of one vierendeel, the third cousin one out of one. The 
significance of this arrangement is obviously that the brother is equally 
related to all four vierendeele : the first cousin only to two vierendeele 
whether on the paternal or on the maternal side, and so on 5 . 



1 Het Rechtsboek van den Briel, uitg. door J. A. Fruin en M. S. Pols, 's Gravenhage, 
1880, pp. 219 ff. (sth Tractaet, caps. 5-8). 

2 A vierendeel is the group of kindred descended from one of the four pairs of 
great-grandparents, i.e. it includes second cousins. 

3 Also called montzoen. The voorzoene of S. Holland custumals (Leiden, 
Dordrecht, etc.) is probably the same thing, cp. Brunner, p. 75 : see Verwejs en 
Verdam, Middelnederlandsch Wb., s.v. The Zeeland keuren (Mieris, I, 3050, c. 41, 
and 1,5150, 0.43) divide wergild into ^hoeftgeld (Hauptgeld,cp.Baugatal'sh6fu'$baug, 
p. 12 supra) and | maechsoene, i.e. the proportions are as in Friesland and not 
Frankish, as Brunner points out (pp. 79-80). 

4 Brunner, op. cit. pp. 83 ff. In Enkhuizen (N. Holland) the brother only pays 
one share in each vierendeel: "ende elcke breeders te gelden in elck vierendeel een 
afterskint maechgelt ende niet meer," N. Bidr. v. Rechtsgel. en Wetg. Dl. iv. (1878), 
19, 91. Zierikzee (Zeeland) reckons on this principle also (in 1509), but the number 
of shares of the brother (6) seems open to suspicion: Rechtsbronncn van Zierikzee, 
uitg. d. W. Bezemer, 's Gravenhage, 1908 (O. Vaderl. Rb.), p. 473. 

3 This is more explicitly stated in the Westfriesche Dingtalen (N. Bidr. v. R. en 
W. N. Reeks vi.) 15 : "Een oude vader, dat is een vierendeel, een afterskynt gelt. 
Item een vader, dat is een sijd twee vierendeel, dat is twee afterskynderen. Item een 

P. II 



162 NORTH GERMANY AND HOLLAND 

The slayer's kinsmen, as we know, are responsible for the whole wergild, 
and the representatives of this side are also the four second cousins, one out 
of each vierendeel 1 , each of whom pledges a quarter of the wergild 2 . No one, 
poor or rich, shall omit to pay his share, " unless he cut himself off from all 
his kinsmen. For the matter is not the burden of the culprit alone, but of all 
those who are related to him." In case he has failed to pay up by the 
appointed day, the kinship must be formally proved to the authorities of the 
town, who must then distrain on his goods to the amount of his liability, 
and hand the proceeds over to the kinsmen 3 . A wergild debt takes pre- 
cedence of all other debts. All the kinsmen seem bound to appear at the 
uoetval or public plea for pardon in church. 

In Waterland the penalty for a breach of a wergild-re- 
conciliation is reckoned according to the degree of kinship : it is 
10 if committed by a third cousin of either of the principals, 
20 for a second cousin, while a first cousin forfeits his life and 
property 4 . 

The laws thus offer us ample evidence of strongly cohesive 
kindreds. We might indeed be at a loss to know how long 
they survived, but as far as the counties of Holland, Zeeland 
and Drenthe are concerned, the charters of the Counts of Holland 
leave us in no doubt, at any rate as to persons of some social 
standing 8 . Among these it became the custom to submit disputes 



rechte breeder, dat is vier vierendeelen, elcke vierendeel een afterskynt ghelt. Item 
een halve breeder twee vierendeel, elcke vierendeel een afterskynt," etc. 

1 Briel, p. 219: "vier achtersusterkinderen uut des misdadighen vier virendeelen, 
die malcander niet en bestaen " are not related to each other. 

2 In Graf Willem's charter to Oudgiessen, it is stipulated that no one can be forced 
to act as pledge for wergild, though he must pay his share (Mieris, II. p. 271 a in 1322). 
In Kennemerland and West Friesland the slain man's kin choose six out of the slayer's 
kindred, each of whom acts as surety for one-seventh of the whole sum, the slayer 
being also responsible for one-seventh. Cp. Th. van Riemsdijk, Het Zevendeel leggen 
na Doodslag, in Versl. en Meded. der Kon. Ak. Wet., Afd. Lett. iv. R, I. D (1897), 
pp. 341-441, and R. Fruin, Over den aanbreng van doodslag, ib. IV. R, n. D (1898). 

3 Briel, p. 222. So also the officials of the Count, Brunner, p. 85: 1380, 1415 : 
and for Leiden (1346). 

4 So Handveste for Waterland, 1415 : Brunner, p. 82 ; Oude Keuren van Enk- 
huizen (N. Bidr. voor Rechtsgel. en Wetg. Dl. iv. (1878)), 17, 84, awards death 
to the actual pledger of peace (soo wie vreede name ende geve), 10 penalty to the 
ist cousin, and 10 to the 2nd cousin. Cp. also Dingtalen van Delft (N. Bidr. voor 
R. en Wetg. N. Reeks, v., 1879), 62, and Oude Keuren v. Dordrecht, 9, 2. 

8 For the lower classes in West Friesland and Kennemerland much evidence has 
been collected for the latter half of the i4th century by Th. van Riemsdijk, op. cit. 



NORTH GERMANY AND HOLLAND 163 

arising out of slaying-suits to the arbitration of the Count, and 
thus we are provided for almost a century with a series of 
documents whose evidence is of the greatest value. These 
awards 1 date from 1316 to 1413* ; and they show all the features 
of the wergilds and treaties with which the laws have made 
us familiar, including representatives of the four vierendeele. 
Frequently, besides the orthodox wergild, the Count provides 
that an extra sum shall be paid, to be distributed among the 
kinsmen, perhaps especially among relatives of illegitimate birth. 
In the following case, as Brunner points out, Gheryt van 
Assendelf and Willem van Adrichem are representatives of two 
vierendeele^ and they are to choose one other out of each of the 
remaining vierendeele : 

"Also for the death of Heynrik van Overcroft six hundred pounds of 
good money are to be paid : of this the kinsmen of Gheryt Moen's son are 
to pay the one half; and the kinsmen of Dire Boudyn's son, and the kinsmen 
of Willem of Gheervliet are to pay the other half, each the half of it ; and 
Gheryt of Assendelf, and William of Adrichem... shall distribute this com- 
pensation [among the kindred], and they shall associate themselves with two 
men out of the other two vierendeele^ who are not related to them 3 ." This is 
at Haarlem, in 1380. 

An award of 1396-7 deals with the death of Floris van Rysoort, who 
was killed by order of the Count, apparently by Willem Herman's son and 
Willem Heyne's son. Heer Jacob van Rysoort applies for compensation with 



For Leiden (same period), see Appendix II. No. 9, infra, and P. J. Blok, Leidsche 
Rechtsbronnen, 1894, in the Zoenboek, passim, esp. pp. 27-8, 41-2. For Dordrecht 
(1456), see J. A. Fruin, De oudste Rechten der stad Dordrecht, Vol. II. No. 171 
(pp. 132-3), and No. 66 (pp. 49-5)- 

1 Uitspraak ter verzoeninge, Zoening, Zoenbrief, etc. 

2 Brunner refers to 15 deeds, many of which deal with several cases. 

3 Mieris, in. 365. " Item van Heynrix doet van Overcroft salmen ghelden zes 
hondert pont goets ghelts, des zullen Gheryt, Moens zoens maghe, ghelden die een 
helft, ende die ander helft Dire, Boudyns zoens maghe, ende Willems maghe van 
Gheervliet, gheliken half ende half, ende dese zoene sullen smaeldeelen Gheryt van 
Assendelf, ende Willem van Adrichem, Bertout Hoenen breeder, ende sullen bi hem 
nemen twe manne uten anderen twe vierendeel, die hem niet en bestaen." Cp. also 
Mieris, in. 501 : for the death of Gheryt Colens 679 pounds 6 groschen are to be paid : 
the 79 pounds 6 groschen are a praecipuum which goes to nearer kinsmen : of the 
remaining 600 pounds 1 50 pounds are to be paid : ( i ) into the vierendeel to which 
Willem van Driemilen belongs : (2) into the vierendeel to which Haerbaeren Aernt's 
sons belong : (3) into the vierendeel to which Meeus Snac belongs : (4) into the Cuy- 
stinger vierendeel. (Quoted by Brunner, p. 56.) These would seem to be non-nobles. 

II 2 



164 NORTH GERMANY AND HOLLAND 

27 of his father's kindred and 18 of his mother's, all named in the award. 
The two Willems with their kinsmen are to pay 400 and 200 Dordrecht 
gulden respectively. The amount is to be paid in three instalments, as 
usual, but the actual sum is to be divided into four parts : erfzoen, of which 
Floris' mother is to have half, voorzoen, maechzoen, and a fourth part for 
beivysing, wherewith Heer Jacob shall at his discretion satisfy his bastard 
kinsmen 1 . We may assume that neither of the two sums was paid over, 
for in 1415 the Count has to make another award, dealing not only with 
the slaying of Floris, but also with that of Willem Heyne's son. This time, 
for added security, kinsmen are made to act as sureties : 

Willem Herman's son and his kinsmen are to produce a thousand 
'gouden Vrancryksche (French) cronen.' There are five sureties on the 
side of Willem's mother's kindred, to act jointly for 'one whole side,' 
presumably both maternal vierendeele ; four on the side of his father's 
father, and four on the side of his father's mother 2 . A number of second 
cousins of the deceased Willem Heyne's son are to undertake various pil- 
grimages (one is to go to Jerusalem), and all his kinsmen are to subscribe 
together to meet the cost of these expeditions 3 . 

As late as 1455, Duke Philip of Burgundy complains that 
whenever there is a feud in his lands of Holland, from which 
slayings, etc., arise, the kinsmen of both parties who were not 
concerned are yet equally involved in the feud 4 . 

His ordinance prohibiting kinsmen's contributions to wergild 
dates from 1462*, so we must presume that the practice persisted 
until that date. In Drenthe we have evidence of it for nearly a 
century longer, though Bishop Rudolf of Utrecht had put an end 



1 Mieris, in. 652. 

2 Mieris, iv. 325-6 (at Leyden). " Item so sullen borgen wesen dit voirsz. gelt van 
der zoenen te borde te bringen van Willem, Hermans zoons moeders wegen...(5 names) 
gesamender hant van een heel zyde. Item van Willem, Hermans zoons oude vaders 
wegen...(4 names) gesamenderhant voir een vierendel. Item van Willem, Hermans 
zoons Vader moeder wegen, sullen borgen wesen. ..(4 names)...." 

3 Ib. "Item, des so sullen Willem, Heynric soens, magen gemeenlic den personen 
voirnoemt, die dese voirsz. bedevairden doen sullen, also veel geven te hulpen horen 
cost opter reysen mede te doen, als redelic, ende besceydelic sal wesen." 

4 Costumen und Rechten von Kennemerland : " Dat so wanneer in onsen Landen 
Holland enigh Vechtelik geschiet, daar Doetschlagen, Lemte, of Quetsinge uf komen, 
dat die Maghen van beide Parthyen, die niet med im Raede noch im velde gewest, 
niet hebben na der Vechtelik ehrer Magen, de gerechtet hebben, einen Freden " 
(quoted by Dreyer, Nebenstunden). 

6 M. S. Pols, De middeleeuwsche Rechtspleging in zake van Doodslag, in Ver- 
slagcn en Meded. der Kon. Ak. v. Wet., Afd. Letterkunde, m. R, li. D (1885), p. 223. 



NORTH GERMANY AND HOLLAND 165 

to its legality in 1447 \ Exactly one hundred years after the 
publication of his law a "Report on abuses which prevail in 
criminal cases in Drenthe" demonstrates the futility of his 
enactment, which prevented official regulation of kinsmen's 
contributions without apparently scotching the custom : 

"In Drenthe... many wicked persons are tempted and drawn into com- 
mitting slayings lightly, because they find therein an easy way of getting 
money. For, when the slaying is committed, they hold a friendly meeting, 
to which are summoned a great number of persons, and these, each accord- 
ing to his means, come to his (the slayer's) aid (with contributions) towards 
the fine and the compensation to the kinsmen of him who is slain, and he 
gets thus a tenth or twentieth part over and above the amount of the com- 
pensation, amends or reparation, or usually more, according to the quality of 
the evildoer and the numbers present 2 ." 

There can be no doubt that these contributors are mainly 
kinsmen. 

Drenthe was very conservative owing to the isolation caused 
by the barren nature of the country, and we actually find a 
judgment of the i6th century ordering three vierendeele of 
a slayer to pay the whole maechtaele, in the absence of the fourth 
vierendeel*. A secondary liability of the six nearest kinsmen for 
fines to the lord is found in the Drenther Landrecht of 141 2 4 and 
actually lasted until 15 57-8 5 . 



1 S. Gratama, Drentsche Rechtsbronnen (O. Vaderl. Rb.), 1894, p. 38, 5, " ...die 
doetslager sail den doetslach...den heren ende vrienden beteren mit sijns selves goede, 
ende die mage en sullen hem van rechtswegen geen hulpe doen." 

3 Ib. p. 77, VI. "In Drenthe baven tselve voirhen verhaelt der kleynicheyt der 
broecken angaende, worden noch mannige boesen gehelden unde getoegen, omme 
dootslaeghen lichtlick tdoene; want sij daerdurch eine manyer vinden omme geldt 
te krijgen. Toe weeten, als de nedderslach gedaen is, holden sie fruntelijke daeghen, 
daer tho geroepen wordt eine groote mannichte van volcke, diewelke hem, elck naer 
vermoeghen, to hulpen koemen totter broecken unde soeninghe der frunden, die doot 
geslaegen is, ende bekompt dan den thyndenn offte twintichsten penninck gemeenlick 
meer, nae qualiteytt der misdaediger oeck na advenant der ankoemelinge, dan die 
boete, amende off soene bedraegett, woewell bij bisscop Roloffs tijden heurin ander 
mit ordinantie verseen is." 

3 Ordelboek -van den Etstoel van Drenthe, uitg. d. H. O. Feith, p. 48. Usually the 
quarter of the wergild due from a missing vierendeel simply lapses, cp. Fruin, Over 
den aanbreng van doodslag, etc., p. 65. 

4 Richthofen, Fr. Rq. p. 528, 31 (cp. 33). 
8 Brunner, pp. 86-7. 



166 NORTH GERMANY AND HOLLAND 

An interesting side-light on the strength of kinship-solidarity, 
and one which we have not met with before, is the provision 
found in the customs of Dordrecht that not more than a certain 
very limited number of kinsmen may serve together as officials 
of the town. In the court of justice there are never to be more 
than two persons who are nearer related even by marriage than 
second cousins 1 . On the heemrad or rural Council two per- 
sons related to each other within the third degree are never to 
serve at the same time 2 . At Utrecht no two kinsmen within 
that degree, or persons married to kinswomen within that degree, 
can serve as borgermesters at the same time 3 . The I5th century 
was thus already warring against the first beginnings of that 
jealously exclusive caste of civic authorities, all connected by 
kinship, which exercised a paramount influence on Dutch history 
until the end of the i8th century 4 . 

We find the institution of oath-helpers of the kindred 
persisting even into the i6th century, though as a rule not more 
than six kinsmen are required for the. oath 5 , which is called 
custinghe or custeet. Most cases of custinghe appear to be from 
Zeeland, but we learn that the institution was not abolished 
in Amsterdam until after I523 6 . 



1 van der Wall, Handvestcn...der stad Dordrecht (Dl. I., 1770), p. 521 : " Dat 
namaels tot ghenen tyden niet meer dan twee personen en sullen te samen in den 
gherecht sitten off wesen die naerre malcanderen sijn van maegscappen off van 
zwagherscappen dan aftersusterkint " (in 1432). (Also printed in Fruin, Oudste Rcchten 
der stad Dordrecht, i. pp. 107-8.) In 1455 two persons are ejected for this reason, 
Fruin, p. 123, van der Wall, p. 593. 

2 van der Wall, p. 542 (1442). 

8 Rechtsbronnen des stad Utrecht, uitg. Muller (Oude Vaderl. Rb. 1881), p. 19. 

4 Cp. H. van Loon, The Fall of the Dutch Republic (1913), pp. 29, 43, 93; and 
G. W. Vreede, Familieregeering. 

8 Brieler Rb. Tr. in. c. 6, p. 164, "die clagher sal nemen by hem vive sijnre maghen 
dit mit hem die custeede doen zullen." In a judgment of the Count over a fray in 
Zeeland, persons accused are to clear themselves with an oath of five kinsmen from 
the accusation that they were concerned in the 'perlamente' (1342), Brunner, 
p. 80. 

8 Fockema Andreae, Het oude-Nederlansch Burgerlijk Recht (Haarlem, 1906), 
p. 209. Cp. for Overijssel : " VVeert sake dat yemant enigen man off vrouwe aensprake 
dat die hem hoerde te rechte, so sal hy den man off frouwe wynnen mit twee gueden 
knapen, die hem sijn achtersusterkynder ende niet veerre en sijn, die van der selver 
side zijn daer hy den van aenspreket." Overijs. Stads Dijk. en Markerechten (uitg. 



NORTH GERMANY AND HOLLAND 167 

There are also distinct traces that the four vierendeele 
exercised a combined guardianship over minors even up to the 
1 8th century 1 . Further, it appears that in S. and N. Holland 
parents could not legally marry a daughter under age without 
the consent of kinsmen from all four vierendeele*. At Haarlem, 
in 1422, a couple who had given their daughter (under age) 
in marriage " without leave or consent of the child's kinsmen of 
her four vierendeele" pay a fine to the Count of Holland 3 . 

The only districts in what is now Holland in the laws of 
which little or no trace of the solidarity of the kindred have 
come to light are Geldern and Loon, on the right and left bank 
of the Rhine respectively. The Geldern Landrecht of 1619* 
knows nothing of maechzoene: the whole wergild goes to the 
heirs. So also in the Landrecht of Loon 5 . Brunner aptly points 
out that these districts lie within old Ripuarian territory, and 
reminds us that the Lex Ribuaria already shows a remarkable 
absence of kin-solidarity. The laws in question are late, but on 
the whole their testimony is borne out by other sources. For 
instance, an award by arbitrators in 1460 shows the slayer 
paying the wergild by himself, and, still more significant, per- 
forming the voetval, or plea for pardon, alone. On the other 
hand, four kinsmen, besides the son and brother of the slain, 
have made the appeal to the arbitrators 6 . 

But for these exceptions, we may fairly say that there is 
evidence for the existence of remarkably cohesive kindreds in 



d. d. Vereeniging ter bevord. van Overijss. Regt en Gesch.), I 1 , p. 104. For 
arbitrators of the kin, see Ordelen van den Etstoel van Drenthe (uit. Joosting), p. 98 
(1530), where the disputants are ordered to choose each two kinsmen and an impartial 
' averman,' who are to make peace in a friendly way on pain of a fine of 100 olde 
schijlde (olde schild = 24 sch.). 

1 Brunner, p. 51. A board of guardians representing all the relatives was 
suggested for the minority of William V. (1753). 

2 Handfeste f. Wierin^erland, 1382, Mieris, ill. 386. So also at Leiden, 1406, 
Brunner, p. 50. 

3 Mieris, IV. 660 a, 1412 (quoted by Brunner, loc. cit.). 

4 Brunner, pp. 68-9. 5 Ib. p. 4, pp. 68-9. 

6 J. A. Nijhoff, Gedenk-waardigheden uit de Geschiedenis van Gelderland, iv. Deel 
(Amhem, 1847), pp. 314-6, No. 356. 



168 NORTH GERMANY AND HOLLAND 

practically all the towns 1 of the various provinces comprised in 
modern Holland, and among the upper classes, until the end of 
the I4th century, and even, in some parts, until the middle of 
the 1 6th century. 

V. Hanover, Munster, Hesse. 

It is only possible for us to glance at the more central and 
southern districts of Germany. It will be most convenient 
to retrace our steps and begin again in the east. 

There is ground for believing that in Hanover the kindreds 
had become somewhat disintegrated by the middle of the i6th 
century. By that date the slayer appears to be responsible for 
the whole wergild 2 . On the other hand, we find the father of 
a slain man asking the Duke if he may fitly prosecute the slayer, 
"with the help of my kinsmen and relations." The slayer 
happens to be the official executioner 3 . In another case of 1572 
three brothers, together with their ' whole kindred/ demand 
justice against a slayer 4 . However it would seem that only the 
near family actually received the wergild 5 . 

In the Celle district of Hanover wergild continued to be 
paid until 1751, but the amounts were absurdly small, and the 
payment was evidently made by the slayer to the heirs 6 . The 
same observation may be made with regard to the Osnabruck 



1 For rural districts direct evidence is less plentiful, except for Kennemerland and 
Drenthe. 

2 Staatsarchiv, Hannover, Cat. Br. Arch. Des. 23. x. d. No. 2, 1559, 7, 23, 26 
Ap. A servant of Jost von Adelebsen kills a man while accompanying his master ; 
Jost tells him he is to remain at the place until he has satisfied the kindred of 
the slain. 

8 Ib. 13 Dec. 1564: "ob woll derselb theter...von mir, mil Zutadt meiner 
verwandten Lund freunde pillich verfolgt worden sein solte." 

4 Ib. 12 May, 1572: "Tileke, Jacob und Berendt gebrudere...sampt der gantz 
freundschafft." 

Ib. 1574, 26 and 29 Nov. The paternity of the slain man being doubtful, there 
is a dispute between the half-brother on the mother's side and the nearest heirs on the 
father's side (ist cousins), as to which is to take the wergild. The assumption seems 
to be that the plaintiff receives the wergild. 

' F. von BUlow and Th. Hagemann, Practise/it Erorterungen...mit Urtheils- 
Spriichen des Zclltschen Tribunals, II. (Hannover, 1799), p. 260. 



NORTH GERMANY AND HOLLAND 169 

wergilds of the i6th century. In a Register of Amt Furstenau 1 
we find such entries as the following : 

1532. "For a slaying, as compensation 10 Mark. 
For a slaying 10 Mark," 

and sometimes as little as 6 or 7 Marks is paid. The fines 
to the public authority usually exceed the sums paid as wergild. 

For Miinster a wergild treaty of 1596 from Warendorf is 
worth quoting : 

"Whereas about 16 years ago Evert Schroder of Westkerken wounded 
Berndt Grundtmann of Lynen in such wise that he received his death 
thereby : on the nth of June of this goth year, in presence of good folk, 
also relatives and friends, the proper reconciliation therefore took place in 
the following fashion : that the said slayer Evert Schroder shall for the deed 
he committed, firstly, give to the poor six bushels of rye, of which three 
shall be expended on the poor at the place where the slayer is domiciled, 
and the other three at the place where the deed took place.... He has 
besides promised and pledged himself to give to the relatives as reconcilia- 
tion-money, 25 Rixdollars, which he shall and will gratefully produce and pay 
in the three following instalments.. ..On the other hand, Peter Versmel called 
Grundmann, and Johann Menneman called Wandtmacher, of Glandorp, have 
promised sut> hypotheca bonorum, that the said reconciliation shall be ad- 
hered to 2 ." 

For districts further south it is useless to search in such late 
records even for faint traces of kin-solidarity, but from the last 
quarter of the I3th century two wergild-treaties are extant 
from Wetzlar and Worms 8 , in Hessian territory, both showing 
traces of the participation of the kin. In the first, of 
the year 1285, both parties declare themselves to be "cives 
Wetslarienses." 

For the slaying of Ludowicus three persons, Heinricus de Nuveren senior, 
Wemherus the son-in-law of Gerhard de Nuveren, and Craftho "films 
Sanne," make reparation to Wigandus called Dytheren, Heinricus de 
Catzenfurt, and Conradus the son of Heinricus de Dridorf, kinsmen 



1 J. Mdser, Patriotische Phantasien, n. Th. No. LXXI. pp. 313-4 (Berlin, 1778). 

z Printed in F. Philippi, Landrechte des Miinsterlandes, Miinster i. W. 1907, 
p. xxxiv. The author observes: " Andererseits haben sich aber in keinem Teile 
Westfalens die Landgerichte so lange und mil so geringen Modifikationen den 
Character des Volksgerichts bewahrt, wie im Miinsterlande." 

3 Or its immediate neighbourhood. 



I7O NORTH GERMANY AND HOLLAND 

(consanguineis) of the slain. Peace is made on behalf of both parties and 
their heirs and 'friends' (amicis). 

The second deed, dated 1288, is drawn up under the auspices 
of the King of the Romans and his brother the Archbishop of 
Mainz. 

It is a contract between the Count of Leiningen on the one hand and 
the Wilschiissel brothers with their kinsmen and friends on the other, 
the Count having killed Heinricus, the nephew (filius sororis) of the four 
Wilschiissel brothers. Besides making these a money payment, or its 
equivalent in land, the Count is to send a man on a crusade or pilgrimage, 
pay for masses, etc., and also provide for four kinswomen of the deceased 
in Cistercian convents. He is further to do his utmost to secure for the 
sister of the slain the fief about which the quarrel had originally arisen, and 
if he fails in this he is to pay her a sum of money. Ten persons (relatives 
of the Count?) stand surety for him 1 . 

In Worms, the Leges et Statnta familiae S. Petri, manorial 
customs of about 1024, give half the wergild to the amid of the 
slain man, but soon after this date the Abbot claims the whole 2 . 

A law from Metternich, in the principality of Treves, still 
recognises treaties with the kindred as late as 1563, if they are 
accompanied by the pardon of the authorities 3 . 

Note. From the analogy of Silesia, whence Frauenstadt has collected 
a number of cases of reconciliations between kindreds 4 , it seems possible 
that the town records (Stadtbiicher) of Central and Southern Germany 
might furnish some similar evidence for kinship-solidarity in the Middle 
Ages, but this is a line of research which I have not been able to pursue. 
In country districts in South Germany it appears that reconciliations 
between the slayer and the slain man's ' kinsmen ' persisted to a late 
date, but we have no reason to suppose that these 'kinsmen' included any 
but near relatives. Thus at Nuremberg in 1485 we find the slayer recon- 
ciled with the widow only 5 . In Appenzell, in Switzerland, wergild is said 



1 These two documents are printed in Zeitschrift fur deutschcs Alterthum, VI. 
(1848), pp. 2 iff. 

8 Markgraf.Ztar mosellandische Volk in seine n Jfm///'/;/<?r (Gotha, 1907), pp. 203-4. 

3 H. Loersch, Die Weistiimcr der Rhcinprovinz, Abt. I. p. 291, Weistum, 102, 2. 
" So magh er ainsoechen ain unsers gnedigen hern schulteiss vmb geleidt 3 tag und 
6 wochen, wanne aber die 3 tag und 6 wochen umb seint und mil der oberkeit und 
frunt?chaft nit zufreden kan warden." 

4 Frauenstadt, Blutrache und Todtschlagssiihne im dcutschen MA (Leipsic, 1881). 
H. Knapp, Das alte Niirnberger Kriminalrecht (Berlin, 1896), p. 174: "mit 






NORTH GERMANY AND HOLLAND 171 

in 1555 to go to the heirs 1 , but we find the 'kinsmen' of the slayer, as 
well as of the slain, included automatically in the peace enforced by the 
town after a slaying 1 . Occasionally we find the slayer forbidden to come 
into the presence of kinsmen of the slain, but the prohibition extends only 
to the second degree of kinship 3 . In Augsburg those who can get a slayer 
outlawed are only the immediate family, the uncles and aunts and first 
cousins. Here however the custumal of 1276 appears to permit the right 
of feud to any agnatic relative of the slayer within the seventh degree 4 . 
Kinsmen through women are debarred altogether from participating in 
the feud 5 . In the cantons of Glarus and Schwyz, in Switzerland, it 
appears that plaintiffs are invariably women, and the reason given is that 
their judicial action does not preclude the men of the family from taking 
vengeance 6 . 

Switzerland yields one document of 1257 which establishes quite a degree 
of kindred-solidarity. Count Rudolf of Habsburg is called in to settle a 
quarrel between two kindreds, "the people called Itzelinge and their kindred 
on the one side and the people called of Gruba and their kindred on the 
other." The injured party receive 60 marks. " Peace (sone) is established 
in such fashion that in each kindred twenty men have sworn peace : in the 
kindred which is called Itzelinge these have sworn : Itzeli and Ulrich...." 
"These 40 have sworn the peace... 7 ." 

It would seem that the ' Itzelings ' are only a family whose father is a man 
called Itzeli, but the participation of twenty kinsmen on each side indicates 
a very considerable degree of solidarity. 

In Austria the practice of making treaties with the kindred of the slain is 



des erslagen weib giitlich vertragen." In these districts it was still a question in the 
i7th century whether the authorities could proceed against a slayer who had made 
peace with the kinsmen of the slain, p. 175. 

1 Blumer-Heer, Staats- und Rechtsgesch. (1850-9), n. 2, p. 3. 

2 E. Osenbriiggen, Das ahmannische Strafrecht im deutschen MA (Schaffhausen, 
1860), p. 30. 

3 Blumer-Heer, op. cit. p. 3, Osenbriiggen, op. cit. p. 29 (in 1660). Cp. Knapp, 
op. cit. p. 151 (t6n). 

4 Osenbriiggen, p. 31. 

5 " Es enmag auch kein wibes friunt vint gesin umbe den totslach." 

6 Osenbriiggen, p. 26. 

7 Tschudi, Chronicon Helveticum, ed. J. R. Iselin (Basel, 1734), Th. I. p. 155: 
"die Misshellende und Tod = Geftchte (blood-feud) die da was under den Luten die 
man da heizzet Itzelinge | und Ir Geschltchte einhalb | und dien Luten | die man 
da heizzet von Gruba und Ir Geschltchte | anderthalb j ...dieselbe Sone ist also 
gesetzet | dass in jedwederem Geschlachte 20 mann die Sone gesworen hand in 
deme Geschlechte | dass man heizzet Itzelinge | so het gesworen Itzeli und Ulrich 
sin Etero. Chuno des Gottzhass Ammann von Wettingen etc. ...Disc 40 hand die 
Sone gesworen...." 



1/2 NORTH GERMANY AND HOLLAND 

opposed by the authorities from 1499 onwards 1 : it is forbidden by the 
Landtag at Innsbruck in I5i8 2 , and again, for Lower Austria, in the 
ordinances of I54O 3 . In southern Tirol, indeed, the law permitting 'pace- 
suchen' with the kinsmen of the slayer is only abrogated in 1773*, but the 
only evidence afforded by this survival is that these extra-judicial reconcilia- 
tions had once been common. 

Such indications of solidarity as are afforded by blood-feuds are plentiful 
all over Germany, as a reference to Frauenstadt's pages will show, but a 
considerable proportion of these illustrate feudalism rather than kin-solidarity, 
and are therefore of no value for our purpose. 



1 W. E. Wahlberg, Gesammelte kleine Schrif ten... fiber Strafrtcht (Vienna, 1877), 
II. p. 123. 



2 Ib. pp. 91, 101. 3 Ib. p. 123. 

4 Ib. p. 91, and p. 123 note. 



CHAPTER VI 

BELGIUM AND NORTHERN FRANCE 

I. Belgium 

FOR Belgium, as for Holland, the chief difficulty in our task 
is the multiplicity of sources and of provinces with distinct 
and characteristic customs. On the other hand, Belgian 
historians have been fully alive to the part played by the 
kindreds in the fourteenth and fifteenth centuries, and a 
considerable number of works dealing with the subject have 
appeared in recent years, notably Petit-Dutaillis' Documents 
Nouveaux sur les Mceurs populaires dans les Pays-Bas au XV. 
siecle 1 . As regards wergilds Brunner's Sippe und Wergild 
remains, and is likely to remain, the best exposition of the 
subject as a whole. For this reason any attempt at an ex- 
haustive treatment of the subject is unnecessary in this work, 
and we shall content ourselves with picking out a few salient 
features. 

Flanders furnishes the fullest information with regard to the 
distribution of wergild, for the laws of Ghent, Bruges, Alost and 
Oudenarde all enter into great detail. Of these we will take the 
Keure of Oudenarde first. They date from I3OO 2 : 

Of the wergild, mondzoene goes to the eldest brother of the slain as 
plaintiff and is one-third of the whole sum. The rest is divided into four 



1 Paris, 1908. It contains a bibliography, to which add : Benary, "Zwei altfran- 
zosische Friedensregister der Stadt Tournai," in Romanische Forschungen, xxv. 
(1908), pp. 1-196. 

2 Printed in Wamkonig, Flandrische Stoats- und Rechtsgeschichte bis zutn [ahr 
1305, ii. a, pp. 156 ff. 



BELGIUM AND NORTHERN FRANCE 

equal parts, and all the brothers together take a quarter from each of these. 
So that what falls to the share of the other kinsmen is after all only half of 
the total wergild, as in the ancient Salic law, which these provisions closely 
resemble 1 . The next class (first cousins) takes two-thirds of this remaining 
half, the next (second cousins) two-thirds of what remains, and the last class 
(third cousins) receive the remainder. Fortunately our source goes on to 
give an example of the division of a wergild of 100 pond, which can be 
tabulated as follows 2 : 

pond sol den 

1. (a} Eldest brother (Mondzoene) 33 6 8 

(b) All the brothers 16 13 4 

2. Rechtzweers (first cousins 3 ) 

(a) On father's side 16 13 4 

(t>) mother's side 16 13 4 

3. Anderzweers (second cousins) 

(a) On father's side 5 11 2* 

(d) mother's side 5 II 2 

4. Derdelingen (third cousins) 

(a) On father's side 2 15 6 

(b) mother's side 2 15 6 

100 O O 



In Denmark we have also seen the brother, as related to the slain on 
both sides, preferred before the son as recipient of the largest share of 
wergild 5 . It is to be noted that the sons of the slain receive nothing ac- 
cording to our present text, and this is corroborated by a much later 
wergild statement, from the Custumal of Alost 6 , which follows a scheme 
similar to the foregoing, and gives the mondzoene to the nearest relative 
on the father's side. It informs us that the wergild of a free man is 
36 pond, and adds the interesting provision that the kinsmen are bound to 
pay the costs (of the suit) unless the mondzoendere, the plaintiff, consents to 
bear the expenses with them 7 . The Customs of Ghent give us fuller 
details 8 : 



1 Cp. Brunner, pp. 35 f. 

2 Warnkonig, op. cit. in. i, pp. 187 f., 192 f. 

8 Verwijs en Verdam, Mn, Wb., s.v. rechtzweers, make this word mean nephews, 
but all analogy, as also the use of anderzweers and derdelingen, is in favour of the 
translation I have given above. 

4 Cp. Brunner, p. 36. i pond = 20 sol, i sol=i2 den. 

5 And in East Friesland?, see p. 156, note i, supra. 

8 Warnkonig, op. cit. III. 2, pp. 112-4. It is later than 1437. 

7 Gheldolf, Coutttmes de Gand, \. pp. 515 ff. 

8 Ib., I. p. 517. 



BELGIUM AND NORTHERN FRANCE 1/5 

The wergild of a freeman is 36 pounds. One-third of this i.e. 12 pounds 
is mondzoene, and falls to the nearest kinsman on the paternal side. The 
wergild is then divided into four equal parts (six pounds each) and of each 
of these shares the plaintiff takes one quarter, i.e. six pounds in all. Thus 
he receives half the wergild (18 pounds). But if he will pay all costs he can 
claim two-thirds of the total wergild. The further contributions are as 
follows : 

s. 

1. The brother takes 20 s. out of each of the four parts ... 80 

2. First cousins take half less, 10 s. out of each of two 

parts, (a) paternal 20 

(ti) maternal 20 

3. Second cousins receive half less, out of one part. 

(a) paternal ... 5 

(&) maternal 5 

4. Third cousins half less. 

(a) paternal i\ 

(b] maternal 2^ 

The slayer's relatives are liable for the wergild in the same ratio. Pre- 
sumably these sums are the maximum which may be exacted from each 
kinsman, and if the total falls short of 18 pounds some near kinsman 
becomes liable for the difference. This, as we shall see, is the case at 
St Omer. The subsequent paragraph ( 3) describes a wergild of 100 
pounds, regarded from the plaintiff's side : 

s. 
Each brother pays to the principal (the representative of the 

slain) 40 

first cousin (ooms of moeyen kinf) 20 

second cousin (underline) 10 

third cousin (derdelinc) ... 5 

A rhymed law from Bruges, dating from the fifteenth century, divides the 
wergild into moetzoene and maechzoene, the former being equally shared by 
all (male) relatives nearer than first cousins (nare danne rechtzweere). Of 
the maechzoene first cousins have twice as much as second cousins and these 
twice as much as third cousins 1 . 

All over the Netherlands wounding, as well as slaying, was an injury 
involving the participation of kindred on both sides. 

Many other towns also, outside Flanders, mention wergild, 
but we lack the details of distribution. Thus at Malines we 



1 Warnkonig, in. 2, Anhang, p. 83. The proportions for first, second and third 
cousins are 4:1:1. (Cp. Brunner, p. 63.) 



176 BELGIUM AND NORTHERN FRANCE 

hear that the mondzoender kept half the vvergild, the other half 
being equally divided among the maternal and paternal kindred 1 . 

In Antwerp it would seem that all the wergild went to the 
plaintiff, who is either the eldest son or the eldest kinsman 2 . It 
is however in Antwerp that we find the rule, similar to that pre- 
vailing in Utrecht and Dordrecht, that no two persons as near 
as third cousins once removed (ten derden halven lede) may hold 
office among the Schepen (magistrates or assessors) at the same 
time 3 . 

We find the curious feature that the kinsmen of the slayer 
are still bound to pay wergild for him even when he has been 
executed in the course of justice for his slaying 4 . This leads us 
to deduce that the kinsmen of the slayer were in the ordinary 
course liable for the same proportion of the wergild as was 
received by the kindred of the slain. Such is certainly the case 
at Lille 5 . In 1330-1 Count Ludwig of Flanders annulled the 
legal liability of the kindred for wergild, but we may suspect 
that it was still customary to pay it, for in 1464 a man claims 
a contribution to wergild from his brother. (The Court decides 
that the brother need not pay it unless he had promised to do 
so.) In Cassel, however, the legal liability of the kindred is 
only abrogated in i6i3 6 . 

Various late Keuren maintain, as if it were a novelty, that 
wergild contributions cannot be forced from the kinsmen. So 
at Ardenbourg, in 1330 : "When a man has killed another, he 
cannot constrain his kinsmen or friends, by law or otherwise, to 
pay zoene for his reconciliation, if they will not do it of their own 
free will 7 ." The relatives of the victim, however, are to continue 
to receive their share. Fortunately we are in a position to judge 
more directly of the question, in Hainault at least, thanks to the 



1 Poullet, "L'hist. du droit pe"nal dans 1'ancien ducW de Brabant," Aftfttt, couronmles 
de tAc. roy. de Beige (410), xxxin. 1865-7, p. 309. 

2 De Longe, Cout. de Brabant, Quartier d'Anvers, 1. p. 12*. 

3 Stallaert, Glossarium, 2, 171. 

* Keure des Dorfes ten Hamre (i 193), 8 (quoted by Warnkonig). 

8 See p. 1 86, infra. 6 Brunner, pp. 64 f. 

1 Cout. des petites villes y n. p. 218 (quoted by Petit-Dutaillis, who also refers to 
the Keuren of Damme, of Mude and of Alost). Cp. also Keure des Dorfes SaflelDere 
(1264), 2. Warnkonig, ill. 2, Nachtrag, p. 39. 






BELGIUM AND NORTHERN FRANCE 177 

preservation of a thirteenth century " register of reconciliations " 
from the town of Tournai 1 . One of the records runs thus : 

" Let all those who shall see this deed know that on a day which is past 
Libens Gillart killed Clais Barisiel in the jurisdiction of Tournai, for which 
death this Libens Gillart and his kinsmen (amis) on the paternal and maternal 
side have made good terms (pats) with the brother of Clais Barisiel and with 
his common kindred on his father's and on his mother's side, in such manner 
that Libens Gillart, Watiers Gillart, Teri Gillart, Cholart le Lormier, Gheron 
de Has, Jehan de Grimaupont,... 2 , Jakemes et Gille, brothers of Estievenes 
of St Martin, have agreed : To give to Watier of Poperinghe as compensa- 
tion for the death of Clais Barisiel 50 pounds tournois and 30 shill. tournois 
for (instead of?) the pilgrimage to Saint Gilles, if Jehans Barisiel will 
take it by the advice of his kindred, if he likes better the 30 shill. than the 
pilgrimage.... 3 " 

We see that eight persons agree to pay the fine. 

In another case, of 1344, one Rasson Delcourt fought with Jehan Haveron, 
in which 'piteous happening' the latter was wounded. He subsequently 
died, but Rasson was acquitted of having killed him. Yet Rasson longs for 
" the friendship of the near kinsmen of Jehan, and for the honour of God and 
the advancement of Jehan's soul he sent on divers occasions a goodly number 
of worthy folk to Jacquemon of Haveron, Jehan's brother, and his kinsmen, 
(asking) that he and his kinsmen might come to terms with him, and (in- 
timating) that though he was acquitted and cleared of the deed by law, he 
would willingly amend it to the brothers and his kinsmen, and for the 
advancement of Jakmin the eldest son of Jehan..." Jacquemon yielding 
to the prayers of the good folks who plead for this, and also in order to 
relieve the soul of his brother Jean, received Rasson, on his own behalf and 
on that of his kinsmen, into good friendship (pats), and the said Rasson 
and Jakemes kissed each other. Rasson pays money which is to go to the 
orphans, but with the proviso that if these two, on attaining their majority, 
prefer feud with him, the money is to go to their uncle Jacquemon 4 . 

Here, a century later, there is no mention of actual financial 
participation of either kindred, but the kinsfolk on both sides 
take part in the reconciliation 5 . This, however, is occasionally 



1 Printed in full by Benary, in Romanische Forschungen, XXV. (1908). 

2 ' quermes demi Escault.' Possibly an error in transcription ? 

3 From Bulletins de la Soc. hist, el lilt, de Tournai, xxiv. pp. 131-2. 

4 Printed in Bulletins de la Soc. hist, et lift, de Tournai, xxiv. pp. 133-5. 

5 Defacqz, "De la paix du sang... dans les anciennes coutumes beiges," Bull, de 
?Ac. roy. de Belgique, xxn. i toie serie (1866), pp. 73-95, quotes two early Belgian 
jurists as saying that it is prudent to make all the kinsmen join in the composition, even 
if the victim forgave the murderer before his death. 

P. 12 



178 BELGIUM AND NORTHERN FRANCE 

characteristic of a much later date : thus in 1459, after a quarrel 
between two kindreds, "the slayer... together with his brothers, 
kinsmen and friends... have several times sent notable persons 
to the kinsmen and friends of the said Laurens, deceased," to 
ask for reconciliation, but complain that the latter refuse l . 

As late as 1 500 Philip I. forbids the authorities of Flanders 
to pardon a malefactor unless he had come to terms with 
the interested parties. In 1619 the High Sheriff of Hainault 
received the right to pardon slayers, but only if they had 
previously made the paix a partie, and the Prince-Bishop of 
Liege declared as late as 1685 that a slayer could not claim his 
grace unless he had obtained the favour of the injured party 2 . 
These survivals are interesting from a juridical point of view 
rather than from ours, for probably by this date the ' interested 
parties ' were only the near family of the slain. 

In the 1 3th, I4th and i$th centuries feuds are extremely 
common, and seem usually not to have been confined to indi- 
viduals 3 . It is not, however, to the feuds themselves that we 
would go for our evidence, but to the truces, which are frequently 
mentioned. They are imposed by public authority, with the 
object of granting a breathing-space during which negotiations 
for a permanent reconciliation can be carried on. In these truces 
the 'kindreds' of both sides are invariably concerned. In Liege 
the bishop could impose truces, but these only included the 
members of the slayer's kindred, not the slayer himself 4 . The 
custumal of Bruges (1461) declares that the persons bound by 
a truce were: the principal delinquent and the injured parties, 



1 Petit-Dutaillis, pp. 179-181, xxxvm. March 1459. Q?. a ^ so XLIV - (PP- 194~5 
Brussels, July 1460 : " grant guerre et debat entre ledit suppliant et ses parens et ai 
d'une part, et lesdits Danel, Woutre de Bouchout et leurs amis d'autre." 

2 Defacqz, op. cit. p. 88. 

8 In the county of Namur a judicial record of 1439 speaks of a comeille des amis 
choosing a chief dele guerre (Brunner, p. 72). In this district feud or reconciliation re- 
mained possible alternatives, but in most other districts at this date feuds were promptly 
put down by means of asseurements. It is in Namur too that one Jehennin, who has 
slain Henri, is set free on its appearing that he had killed Henri in a legitimate feud, 
Henri's cousins having killed his father. This in 1477 (Brunner, loc. cit.). 

4 Poullet, Essai sur 1'hist. du droit criminel dans... Liege, MSm. cour, de I'Ac. roy. 
de Belgique, xxxvm. (1874), p. 139. 




BELGIUM AND NORTHERN FRANCE 

those who meditate vengeance, and the kinsmen or connections 
(allies) up to the third degree inclusive, whether on the paternal 
or maternal side 1 . In the Tournai register we find : 

" Colart of Callenelle has given truce on his own behalf and on that of his 
kinsmen (les siens) for the death of Capelain his brother to all the kindreds 
of those who were implicated in the slaying of his brother ; and the actual 
persons implicated have none of it (the truce), nor the kinsmen of Floket on 
the father's side. Jehennet Tiebegot received it (the truce) as kievetaine 
(chief) for his brother Jakemin. And Lotar Gargate has pledged the truce 
and made it good on behalf of the strangers (? sauvages) for Jehennet Floket. 
And Biertrant Warison has received it as 'chief for Jakemin Wisse on the 
maternal side. And Watelet de la Cambe has received it as 'chief on the 
paternal side. And Druiel del Ausnoit has received it on behalf of his branch 
(coste\ for Jakemin his son 2 ." 

Such a document gives some indication of kin-solidarity, but 
not very much, as it does not tell us how many kinsmen each 
individual represented. Oddly enough, by far the most striking 
evidence for cohesive kindreds is furnished by \.\iQfottrjttrements, 
peculiar it would seem to Hainault and the neighbouring French 
districts. The fourjurement is a public and collective repudia- 
tion, on the part of the whole kindred, of one of their number. 
The following is the first example in the Tournai register : 

" The year of the incarnation 1273, on the ninth day of March, on a Friday, 
Jehan Moriel dou Mortier, in the hand of Williaume Castagne, Provost of the 
Commune, in presence of Provosts and assessors (jur/s) in full assembly in 
the Town Hall, forswore Jehan his son, clerk, in such sort that Jehan Moriel 
promised and swore on holy relics that he will not support (confortera) nor 
aid Jehan his son, clerk, henceforward, neither with his person nor with his 
property, neither against death nor maiming nor bodily injury, nor against 
any chance that might befall his son aforesaid, on account of the bodily 
injury he inflicted on Jakemin, the son of Jehan de Rongi, during truce. 

"And in exactly the same fashion as Jehan Moriel has forsworn his son, 
so all these hereinafter named have forsworn him with pledged faith and 
with oath, in the presence of the Provost and assessors : 

" Colin, the son of Moriel dou Mortier, and Moriel has taken Jakemin('s 
oath) upon himself until he comes of age, when he will bring him to (ratify) 
this repudiation...." 



1 Petit-Dutaillis, p. 58. Cp. p. 64 : in Bruges two persons are takn by the police 
out of each of the four branches of the family concerned, as 'otages' until peace is 
concluded. 

2 Benary, op. cit. p. 19, No. 51. 



12- 



ISO BELGIUM AND NORTHERN FRANCE 

Then follow 70 other persons. Then 

" Here after follows all those who have forsworn Jehan Model dou 
Mortier, clerk, of those who are related to him on his mother's side, and they 
have all forsworn him in the very same fashion as his father has forsworn him. 
To wit : Jehan Flamenc de Bauwegnies, and he has taken the oath of 
his two sons upon him to make them forswear (Jehan) when they come 
of age...." 

Then follow 53 persons. Then 

" These are those excluded from the peace of the party of Flamenc : 
Jakeme the brother of Flamenc, Gilles Mainbuede, Jakeme of Valenciennes 
and his two sons Henri and Jakeme, and the son of Colart the younger 
of Baitwegnies, Mathias de la Mote, Rogier his brother, Jehan of Lignette, 
the son of Gillion dou Pire and Monart Cavol of Lille 1 ." 

In all, 129 persons swear the oath. 

In this case the repudiated kinsman has been guilty of what 
Scandinavian custom would call a ' nithing's deed,' but there are 
so many cases of repudiation in so short a space of time that 
we can hardly attribute them all to serious breaches of faith a . It 
is possible that in certain towns this formal and public repudiation 
by the kindred automatically followed the outlawry of one of its 
members. But whatever the origin of the custom, it is a striking 
illustration of the solidarity of the kindred that 129 male rela- 
tives can be suspected of a desire to harbour or shelter an outlaw. 
It is interesting to observe that some of the persons mentioned 
at the end are domiciled in such comparatively distant towns 
as Lille and Valenciennes. 

Another case, in which 67 persons forswear their kinsman, 
is interesting because the first actor is no nearer a kinsman 
to the delinquent, Watier Maughier, than nephew. Some light is 
thrown on this by the following paragraph : 

" Jakeme de la Buirie has forsworn by pledged faith in full assembly 
in the Town Hall all those who are related to him who have not forsworn 
Watier Maughier, and (has sworn) that he will never concern himself, 



1 Benary, pp. 99-101, No. 615. 

2 There are 27 cases in seven years. They usually seem to follow a slaying. 
That the fourjurement was common all over Hainault, at least, seems clear : the 
Hennegauische Pax of 1171 ordains that the ceremony must take place in the Count's 
Court. (O. Goldast, Die Gerichtsbarkeit in den Dorfern des mittelalterlichen Henne- 
gaues, Leipsic 1909, p. 19.) 



BELGIUM AND NORTHERN FRANCE l8l 

whatever may happen, with regard to the death of Gillot Kieville whom 
this Watier killed 1 ." 

We may perhaps deduce that some of the nearer kinsmen of 
Watier Maughier could not be induced to repudiate him. 

In view of the above cases, we are perhaps justified in 
considering the solidarity of the kindred in these districts as 
beyond question. The fourjurement of a kinsman by over 100 
persons at the end of the thirteenth century may be taken to 
prove the existence of large and cohesive kindreds. 

The accounts of the fourteenth-century chroniclers Jean d'Ou- 
tremeuse and Henricourt fully bear out the picture of cohesive 
kindreds traced for us in the laws and charters. In both the 
word lignage, kindred, occurs almost on every page 2 . Jean d'Ou- 
tremeuse shows us the Bishop of Liege summoning his vassals to 
military service, and getting none, "car li lignages soy guerioient 
adont tous li uns a 1'autre en paiis del evesque de Liege, si qu'il 
ne pot avoir nulluy 3 ." In this district persons would often deny 
their relationship "en disant qu'ilh n'estoient point de linage," 
in order to avoid being involved in a quarrel, and would even go 
so far as to change their armorial bearings 4 . " The sire de 
Hermalle summoned all those of his kindred, and demanded 
their aid in order to have vengeance, and they all remained with 
him," says Henricourt 5 . Thus it is not a mere question of the 
immediate relatives. 



1 p. 105, No. 628 a. 

3 Cp. Chronique de Jean des Preis det d'Outremeuse, ed. A. Borgnet (Brussels, 
1867), Tome v. (Chroniques de Liege): 

p. 543. " li linage des Preis qui estoient nobles et puissans, et les Malhars del 
Salvenier soy gueroient 1'un 1'autre... la guerre fut mult felle et fort, si en morut 
mains hommes. Encore oirent les Malhars I. forte guerre a eel temps meismes 
encontre les Yerteis, qui estoient des Preis del costre de Nuefvis, acomble de Waroux. 
Et encore al temps dedont avoit line grant guere entre les Malhars et cheaz de Sains- 
Servais en Liege, et enssi avoient guere les Malhars a in. fors linages." 

p. 547. "Ly evesque... mandhit a li (sangnour d'Awans) et a tous ses cusins qu'elle 
li amendent dedens vm. jours leurs meffais...." 

3 Quoted by Poullet, Hist, du droit crim. dans Vancienne principaitte de Liege, 
p. 130, cp. p. 134- 

* ib. p. 135 (Polain, II, pp. 25, 31). 

5 Miroir des nobles de la Hesbaye (p. 341) : " Le sire de Hermalle mandast tos 



1 82 BELGIUM AND NORTHERN FRANCE 

The evidence of the popular epic of Reynard the Fox is not to be despised 
in this connection, for we may fairly consider that the Flemish version de- 
picts the manners and customs of the Netherlands in general. The various 
versions are not all slavish translations of their Old French original, and 
perhaps we may be pardoned for digressing sufficiently to note their diver- 
gences in the matter of references to the kindred. Thus where the cock 
brings forward his suit against Reynard for the slaying of one of his family, 
the French Roman de Renart shows him accompanied by his mate and three 
daughters 1 . Willem, the thirteenth-century Flemish translator, depicts this 
scene as if it were an illustration of the custumal of Briel, for the bier is ac- 
companied by four male relatives (no doubt the representatives of the kin), 
one at each corner of the bier 2 , as is laid down in that work 3 . The Low 
German version, printed at Liibeck in 1498, follows what we have seen to 
be Schleswig-Holstein custom, and shows the cock surrounded with his 
kindred, his geslecht, as the bier is borne into the king's court of justice 4 . 
In the High German version of the poem, on the other hand, though it dates 
from the twelfth century, there is no trace of the kindred, and Chantecler is 
accompanied only by his wife 5 . 

In the same scene the French version makes the wolf Isengrim prefer 
his suit against Reynard alone 6 . The Flemish version shows the custom 



ceaz de son linage, et requist leur ayde par avoir vengement, et ilh demoront tos 
deleis ly " (quoted by Poullet). 

1 Le Roman de Renart, ed. E. Martin, Strassburg, 1882, 1. 279 ff. : 

"Chantecler et Pinte 
Qui a la cort venoit soi qinte 
Devant le roi de Renart plaindre," etc. 

3 Van den Vos Reynaerde, uitg. W. L. van Helten, Groningen, 1887, 11. 275-6. 
So also in the i6th cent. chap, book, E. Martin, Das niederl. Volksbuch Reinaert de 
Vos, Paderborn, 1876, p. 14. 

3 Het Rechtsboek van den Briel, uitg. d. J. A. Fruin en M. S. Pols (1880), 
p. 179 : "dat die vier achtersusterskinder sullen gaen staen elcs an een hoeck vander 
baren." 

4 Reinke de Vos, hrsg. A. Liibben, Oldenburg, 1867, I. 3, 11. 294 ff. : 

"Quam hane Hennink mil sinem geslecht 
in des konninges hof gevaren," etc. 

5 Reinhart Fuchs (supposed to be the work of an Alsatian), hrsg. K. Riessen- 
berger, Halle, 1886, 11. 1458 ff.: 

"Schantecler quam do 

und ver Pinte zware 

si truogen uf einer bare 

ir tohter tot."... 

I do not quote from the i5th century Danish and English versions, as neither of these 
show any individuality of their own, but appear to be careful translations. 

6 Martin, 11. 27 f. : " Et Ysengrin qui pas ne 1'eime 

Devant toz les autres se cleime." 



BELGIUM AND NORTHERN FRANCE 183 

of Flemish law-courts : Isengrim and his kinsmen came before the king to 
make their plaint 1 . On this the Liibeck version enlarges : 
"Isegrim de wulf begunde de klage 
sine vrunde, sin slechte, sine negesten mage 
de gingen al vor den konnink stan 2 ." 

In the High German the kindred is narrowed down to the immediate family: 
" Ver Hersant unde f sengrin 
quamen dar und die siine sin 3 ." 

Worthy of note, too, is the form of the king's threat in the Flemish and 
Low German versions. In the former, the king declares that if Reynard 
continues to be recalcitrant he will not be summoned again, but that ven- 
geance will be taken on all his kinsmen 4 . The Low German version makes 
the king say that disobedience will mean the ruin of Reynard and of all his 
kindred 5 . There is no similar passage in the High German version. Even 
there, however, we find a kinsman making a faint objection to serving the 
king at the expense of a kinsman 6 . 

The Flemish and Low German versions diverge characteristically from 
the French in depicting the part played by Reynard's kinsmen at the time 
of his duel and subsequent disgrace and condemnation. In the Roman de 
Renart, Reynard's defeat merely causes his kinsmen great shame 7 , and they 
take no action when they see him bound 8 . The Flemish Willem makes 
Reynard's nearest kinsmen leave the court on his condemnation 9 , while 



1 Helten, 11. 55 f.: " Isingrin ende sine maghe 

Ghingen voer den coninc staen." 

2 Liibben, 11. 33 ff. 3 Riessenberger, 11. 1359^ 
4 Helten, 11. 926 ff. : 

"Ne comt hi niet, hets hem quaet: 
Men salne derdewerven niet daghen, 
Maer rechten le lachtre alle sinen maghen." 
Cp. Reinatrt, hrsg. E. Martin, Paderborn, 1874, 11. 2537 ff. : 
" Alle di hem ten tienden lede 
sijn belanc, sullent becopen." 
8 Lubben, 11. 915 ff. 
Reinhart, 11. i6 4 9ff. : 

"D6 sprach Diepreht ze stunt 
daz lantreht ist mir niht kunt, 
herre, er ist min kullinc. " 

7 Martin, 1. 1351: "li parent Renart ont grant honte." 

8 Roman de Renart, ed. Meon, 11. 11,637 ff. : 

" Ses parenz ert et ses amis 
Liez le voit et entrepris." 

9 Helten, 11. i75off. : 

' ' Do Reynaert verordeelt was 
Orlof nam Grimbert die das 
Met Reynaerts naeste maghen." 



1 84 BELGIUM AND NORTHERN FRANCE 

Isengrim on his side is urging his kinsmen to hold their prisoner fast 1 . In 
the Liibeck version Reynard's kinsmen keep vigil with him the night before 
the duel, and accompany him to the field 2 . Reynard, on his defeat, offers 
their perpetual service to Isengrim 3 , and when his plea for mercy is refused, 
threatens him with the vengeance they will exact 4 . On his condemnation 
they leave the court, to the embarrassment of the king, who realizes that he 
can ill spare them. More characteristic still, perhaps, is the circumstance 
that when the tables are turned, and the king begs Reynard to pardon his 
enemy, Reynard insists on asking the consent of his kinsmen before he will 
yield to the king's request 5 . 

II. France. 

A. 

In French Flanders we find customs of wergild and of 
reconciliations of the same type as across the border. 

Wergild-regulations exist for the town of Lille, in the 
1 3th century Livre Roisin 6 , which remained the recognized 
custumal of the town until Charles V ordered a revision of 
the customs of Flanders. The chapter in question runs thus 7 : 

For the information of the ^paiseurs' 1 (pacificators) of this town, concern- 
ing the death of a man : a man owes a full payment of 24 Artois pounds, and 
the party of the delinquent shall raise this from his kindred as follows below : 

sous deniers 

1. From the brother 20 

2. uncle, paternal or maternal 15 

3. nephew, son of brother or sister 15 

4. first cousin 8 10 

1 Helten, 11. i8i6ff. 2 Liibben, mi. 6, 11. 6187, 6244 ff. 

3 Ib. mi. 8, 11. 6397 f.: 

" Dar to al mine angeborne vrunde 
scholen ju denen to aller stunde." 

4 Ib. 11. 64578".: "So mote gi alle tit vruchten dan 

vor min slechte, vor mine vrunde." 

8 Ib. 11. 6551 f. : " Doch bidde ik, de konnink mi wille gunnen, 
dat ik minen vrunden des ersten vrage." 

6 Brun-Lavainne, Roisin, Franchises, Lois et Coutumes de la ville de Lille 
(Lille and Paris 1842), p. vii f. The MS. dates from the second half of the i 
century, but seems only to reproduce legislation previous to 1295. Cp. Dubois, Les 
Asseurements au 13* sticle (Paris 1900), p. 132. In 1617 the collection was copied, 
presumably for reference, by order of the magistrates. 

7 Roisin, p. 107, c. IV. 

8 It may be pointed out that, exclusive of classes 2, 3, 40 and 5 a, which are 
probably later additions, each more distant parentela pays half the quota of the 
next nearer parentela : 20 : 10 : 5 : 2$. (There are 12 deniers to a sou.) 



BELGIUM AND NORTHERN FRANCE 185 

sous deniers 
4rt. From the first cousin once removed (demi point mains) ^ 6 

5. second cousin 5 

5& once removed (demi point mains) 3 9 

6. third cousin 2 6 l 

" If anyone breaks this peace and these arrangements which are made 
and declared for the purpose of making peace, it is ordained that if he be a 
townsman he shall be banished from Lille and from its territory (castelerie) 
for ten years and ten days, with 60 pounds forfeit, and all his kinsmen who 
are townsmen must repudiate him by oath (fourjurer)...." 

The limit of the kindred was evidently the same at Cambrai 
as at Lille, for in 1227 Bishop Godefroi enacts that the bishop 
may sell or grant to any one the right to rebuild the house of 
a slayer, which had been pulled down for a year, except to those 
who are related to the slayer within the fourth degree*. 

A wergild statement from the town of St Omer, from the 
end of the I3th century, reckons the liability of the kindred 
even further to fourth cousins, adding "et la va hors li parages." 
This statement of wergild is particularly interesting. It is drawn 
up by one of the more or less official arbitrators, Ghis 1'Escrine- 
werkere, who adds at the end that he has acted on these ordinances, 
in company with other worthy folks, for fifty years and more, 
and that he has set them down, with the collaboration of others, 
as they have been applied in his time. He gives not only a 
detailed wergild statement, but a full description of procedure 
after a slaying 3 . 

The slayer may seek peace himself, offering pledges for the sum of 
24 pounds, but if he is absent, his ' amis ' (kinsmen) must offer pledges for 
the sum, and he who acts on behalf 4 of the body of kinsmen (representative 
of the slayer), and carries the sword, should persuade his kinsmen " those 
whom he can best ask on his father's side " to act as sureties (for the whole 
payment) ; but there is an understanding that these sureties shall not suffer 
financially unless in the last resort. The slayer's representative pays one- 
third of the wergild, and the children of the slain, whether sons or daughters, 
receive it. The other two parts are handed over to the four arbitrators, 



1 The total is only 3 livres 18 sous 9 den. : no doubt the slayer is entitled to take 
the sum stated from each uncle, nephew, etc. 

2 P. Dubois, Les Asseurements au 13' siede (Paris 1900), p. 106. 

3 Giry, Hist, de St Omer (Paris 1877), pp. 576 f. (XXIX. 791). 

4 Kievetaine. 



1 86 BELGIUM AND NORTHERN FRANCE 

chosen by the injured kinsmen, and these have to distribute it to the 
kindred, 'member by member,' within the year. They receive 12 pence 
out of every pound themselves in return for their services. The repre- 
sentative of the slayer must demonstrate to the magistrates (eskevins) of 
the Town Hall that he has paid his instalment, and ask for a sergeant to 
accompany him to all his kinsmen, announcing the peace and demand- 
ing their legal contributions. The kinsmen of the slain receive similar 
proportions : 

A. son, \ of total sous den. 

B. i. each brother 15 

2. each nephew, of either side ... 10 

3. first cousins 10 

4. once removed 7 6 

5. second cousins 5 o 

6. once removed 3 9 

7. third cousins 2 6 

8. once removed i 10 

9. fourth cousins i 3 

It will be seen that the total will vary according to the number of 
brothers and nephews. Probably also each cousin pays the sum indicated. 
If the contributions fall short of the total, the father of the slayer's repre- 
sentative becomes liable 1 . If he is dead his (other) sons have to make 
up the total ; or, in the last resort, the sureties. The actual zoene, or 
reconciliation, also involves the whole kindred : 

" To make the soene 1 for the death of a man the slayer must carry the 
sword, in his shirt, bare-legged and unshod, bare-headed. Item, the sons 
of the slayers, the brothers of the slayers, the nephews of the slayers, the 
first cousins of the slayers and their sons, must go in their shirts, bare-legged 
and unshod, without a hood. Item, the second cousins and their sons shall 
go with bare feet, in their tunics, ungirt, without a hood. Item, the third 
cousins and their sons shall go in their tunics, ungirt, without a hood, and 
shod. And all the slayers shall walk together after that one of them who 
carries the sword, in their shirts, bare-legged and unshod, and without a 
hood 3 ." 

The scribe adds that a zoene as described above took place in 
the town hall in 1374. An ordinance of 1593 still assumes the 
presence of kinsmen and friends on both sides 4 . 



1 Giry says the representative himself, but: "se...li peires del vallet ki 1'espeie 
portast vesquit encore. ..on devroit...prendre sour tout le sien...tout chou k'il i 
defauroit." 2 Giry writes this zoeve. 

3 Giry, op. cit. xxix. (from Registre des Bans Municipaux). 

4 Bled, Le Zoene ou la Composition pour homicide a St Omer jusqu'au xvn. 



BELGIUM AND NORTHERN FRANCE 1 87 

The town records of St Omer have yielded some very 
remarkable documents of the I4th century, which show wergild 
still being received and distributed among relatives up to second 
cousins. Thus for 1381 there is a record of a zoene 1 

" for the death of the late Jean Lamps, glazier of the town, son of Jehan 
Lamps : Jehan Martin called Mahieu, who killed him, carried the sword, 
and the said sword was received by Bauduin Cloez, of Rubroec, second 
cousin of the said deceased on the father's side, and the said treaty was 
sworn by : Luy le Poirele, bourgeois, second cousin of the said deceased 
through his father's father, George le Hoccre, bourgeois, second cousin of 
the said deceased through his father's mother, Jehan Fiebe Ysercoich, 
bourgeois, second cousin of the said deceased through his mother's father, 
and Thomas Fiebe, bourgeois, second cousin of the said deceased through 
his mother. And twenty-four livres were placed in the hands of messieurs 
the magistrates (escheirins) for the said peace." 

The magistrates are of course to distribute it among the 
kindred, as the custumal prescribes. More often, however, they 
hand the sum over to four relatives of the slain, who are to dis- 
tribute it among the various branches of the kindred. In this 
case there are sureties to see that the distribution actually takes 
place. 

Thus there is a record of a zoene in 1389, at which 24 pounds (livres) were 
duly paid, "of which 12 pounds were handed over to the aforesaid Thomas 
Vidor (first cousin once removed), and Jehan Pasquiez (second cousin) : the 
surety for them being Baudin Cokempot, bourgeois ; item, 6 pounds of it 
were handed over to the said Willem le Bye (second cousin through his 
father's father) : surety, Tassart Gaetoc, bourgeois ; and the other 6 pounds 
were handed over to the said Jehan le Vine (third cousin) : surety, Michel 
Gougebent, bourgeois 2 ." 



siecle, in Mem. de la Soc. cC Antiquaires de la Aforinie (St Omer), xix. (1885), 
p. 231-4. 

1 Bled, Le Zoene, p. 341 : ..."a la zoenne de la mort de feu Jean Lamps verier 
de la ville, fils de Jehan Lamps, porta 1'espee Jehan Martins dit Mahieu qui 1'ochist, 
et rechupt le dicte espee Bauduin Cloez, de Rubroec cousin en aultre audict mort 
de par le pere, et jurerent le dicte pais Luy le Poirele bourgois cousin en aultre 
aud. mort de par le pere de sen pere, George le Hoccre bourgois cousin en aultre 
aud. mort de par le mere de son pere, Jehan Fiebe Ysercoich bourgeois cousin en 
aultre aud. mort de par le pere de se mere, et Thomas Fiebe bourgois cousin en 
aultre aud. mort de par sa mere. Et furent vingt quattre livres par. mis en la 
main de messieurs Eschevins pour lad. zoene. ..13 nov. 1381." 

2 Bled, op. cit. p. 244, note I : "...Et furent xxiiij l.p. [livres parisis]...dont 
douze livres en furent baillie aux dessusdictz Thomas Vidor (cousin germain demy) et 



1 88 BELGIUM AND NORTHERN FRANCE 

The money is thus handed over to four kinsmen, repre- 
sentatives of the various branches of the family, and the duty 
of each surety is to see that the money is actually distributed 
among the group of kindred concerned l . 

A case of 1482 is interesting as showing a rare generosity : 

"And as to the 24 Parisian pounds which from the oldest times have 
been paid by him who makes peace, the said kinsmen and friends of the 
said deceased, on their own behalf and on that of all the other kinsmen 
of this deceased, having regard to the poverty of the said Girard [the slayer], 
count themselves content in that matter and have promised to acquit 
Messieurs [the magistrates] and entirely remit the payment thereof 2 ." 

It was the magistrates' duty, as we have seen, to receive the 
payment from the slayer's kinsmen. 

The practice of treaties after slayings continued in St Omer 
until the i/th century 3 , but long before this they had been 
narrowed down to the immediate families of those concerned. 
Of the documents printed by Bled, the latest to show a real 
solidarity of the kindred dates from 15/7: 

"At the zoene and reparation of Jehan Marissal, at the time of his 
decease a labourer living at the Nart outside the Boullizienne gate, Loys 
Malbrancq, ironmonger (cancaillier) and bourgeois of this town of St Omer, 
carried the sword for the slaying committed by him on the person of the said 
deceased Marissal : peace was sworn by Charles de Lattre, son of Jehan, 
attorney by right of special powers inserted in the deeds of appointment for 
this occasion, recognized and acknowledged in the presence of royal notaries 
of this residence, on the I4th of June last, by Jehenne de Fosse, widow of 
Jehan Marissal, both in her own title and as having the care and guardian- 
ship, as mother, of Jehan, Charles, Gilles, Robert, Philippe, Vincent and 



Jehan Pasquiez (cousin en aultre), plaiges pour aux Baudin Cokempot, bourgois ; 
item en fut baillie six liv. aud. Willem le Bye (cousin en aultre de par le pere de son 
pere), plege Tassart Gaetoc, bourgois ; et les aultres six livres furent baillie aud. 
Jehan le Vine (cousin en tierch), plege Michel Gougebent, bourgois. 10 Oct. 1389." 

1 Cp. also p. 243, note 3 : " lesquels xxiiij furent bailliees au [sic] quattre 
personnes dictes qui jurerent lad. paix, pour distributer et payer aux cousins dudit mart 
de quattre costtfs..." (1383). 

8 Bled, p. 143, note i : " Et quant au xxiiij l.p. que de toute anchiennete' se paient 
par iceluy qui faict zoene, lesd. parens et amys dud. deffunct pour eulx et pour tous 
les aultres amys charnelz d'iceluy feu, regardans la povrete" dud. Girard, se en sont 
tenus contens et en ont promis acquittier et du tout d6chargier messieurs." 

3 Bled, op. cit. 



BELGIUM AND NORTHERN FRANCE 189 

Chrestienne Marissal, her children ; Robert de Fosse, Bailly of Tatinghen, 
maternal grandfather, maitre Arnoult Marissal priest, c urt proprittaire of 
Longuenesse, Vincent Marissal labourer, these acting and answering for 
Lambert of Lattre and Jacqueline Marissal his wife, Flourens Bonnerue, 
Gillette Marissal, and Marie Marissal fille d marier ; the above-mentioned 
of the surname of Marissal, brothers and sisters of the late Jehan Marissal, 
themselves acting and answering for all other kinsmen and friends of the 
said late J. Marissal, promising, through the attorney before named, to hold 
and cause to be maintained for ever, firmly and immutably, the said peace 
made between them touching the said homicide 1 ...." 

We see that in spite of the great number of names only the 
widow, brothers and sisters and brothers-in-law actually appear, 
though they vaguely undertake to answer for all other kinsmen. 
But this is in the last quarter of the i6th century. 

St Omer is singularly fortunate in its archives, but it was not 
the only town in which the " kinsmen and friends " still appear 
in wergild treaties as late as the I5th century. Both parties are 
still concerned in the following case of 1458 from Lille : 

About forty years before the date of this document 2 Parceval de la 
Woestine had killed Jehan Willays, as the sequel to a complicated feud. 
Parceval then took refuge in a church, and meantime " the Lord of Merckem 
and other kinsmen and friends of the said suppliant (Parceval) did so much 
and negotiated so eagerly with the kinsmen and friends of the above-named 
deceased, that a satisfactory peace and reparation were made and brought 
about for the said death and homicide, in such fashion that the said kinsmen 
and friends of the before-named deceased held themselves then, and have 
since always held themselves, well satisfied and content 3 ." 

The institution of truce enforced on the two parties by 
public authority is characteristic of a very wide area in France. 
St Louis seems to have originated the quarantaine, or automatic 
truce of 40 days for both kindreds, and later kings do their best 
to maintain it 4 . The towns frequently have a similar institution. 



1 Bled, op. cit. p. 343. 

3 These family feuds were of long duration, cp. Petit- Dutaillis, No. xxxi. 

3 Petit-Dutaillis, op. cit. pp. 173-4, No. xxxn. : "le seigneur de Merckem et 
autres parens et amis dudit suppliant firent tant et traicterent si avant avec les parens 
et amis d'icellui defunct, que bonne paix et amendise fu faitte et accomplie de laditte 
mort et homicide, telement que iceulx parens et amis d'icellui defunct s'en tindrent 
lors et s'en sont adez depuis tenuz pour bien contens et satisfaiz." 

* Dubois, Les Asseurements au 13* sihle (Paris 1900), pp. 74-8. 



I9O BELGIUM AND NORTHERN FRANCE 

" All persons are within the truce, unless they are named and 
expelled from the town-hall, as they should be," says the 
custumal of Douai 1 . " When truce is taken, as it should be, 
by the law of the town for any of the kinsmen, all who are 
outside the town must hold the truce as firmly as those who 
are in the town when truce is taken 2 ." At Valenciennes there 
is a ' respite ' : " all the kindred of either side, wherever they are, 
are in respite for the day or night during which the ' incidents ' 
took place, and for the whole day and night following, except 
those who were actually involved in the deed 3 ." 

At Lille : " It is law that if one takes truce from a man who is wounded, 
and he die, the truce is none the less firm and immutable for all the 
kindred...," and we hear of truce being taken " from the folk of his kindred 
on both sides, that is to say on paternal and maternal side 4 ." A truce 
between bourgeois of Lille cannot be repudiated, though a truce between 
bourgeois and ' forains ' (outsiders) can, if the repudiator is accompanied by 
his 'kindred' (lignage) in the town-hall. If the lignage do not appear, three 
officials must fetch them, but are not bound to go further than fourteen 
leagues in search of them 3 . 

In many French towns, as in Flanders, there are paiseurs, 
pacificators, with authority delegated by the echevins. So at 
Lille, at Douai, at Valenciennes, at Amiens, at Henin-Lie"tard 6 
(in the Pas-de-Calais). The function of these officials is the 
specialized one, in other towns still performed by the fahevins, 
of arbitrating between two kindreds with a view to imposing 
a permanent treaty. This is a preventive measure taken after 
some act of violence has occurred. St Omer furnishes a good 
example from 1339: 

"Let all remember that Bauduin Cloet, Henri Cloet, Wautier Cloet, 
brother of Sire Mikiel Cloet, in that he was the son of Thieri Cloet, 
Jehan Cloet, the son of Wautier Cloet, Thieri Cloet, the son of Bauduin, 



1 Espinas, Les Guerres Familiales dans la Commune de Douai au xm. et xiv. 
siecles. Nouv. Rev. hist, de Droit, xxm. (1899), p. 443. 

2 ib. pp. 450-t (1245). 

3 Dubois, op. cit. p. 133. 

4 ib. p. 136. 5 ib. p. 150. 

8 For evidence of kin-solidarity in this town, cp. Dancoisne, Recherches historiques 
sur Htnin-Littard, Douai, 1847, a book which I have unfortunately not been able 
to see. 



BELGIUM AND NORTHERN FRANCE 19! 

Wautier de Lent, and Jehan Lernel, cousins of the said Sire Mikiel on the 
paternal and maternal side, have granted on their own behalf and that of 
their kinsmen, sound, firm and complete peace to Willaume de la Bruyere, 
the son of Gillon, and his kinsmen, as for the deed and slaying perpetrated 
by the said Willaume on the person of the said Sire Mikiel. Which peace 
the above mentioned have sworn, their hands laid on holy relics.... 1 " 

For Douai we have singularly tantalizing records of these 
reconciliations between kindreds, for a space appears to have 
been carefully left by the clerk in which to insert the number of 
kinsfolk present, and has never been filled up. 

Thus in 1262-3 we find tne guardians of treaties making known that 
Huet Boine Broke, in order to come to terms with Gerardin Goulet, must 
swear on holy relics with. ..men of his kindred that he and they deplored and 
repented the occurrence which took place between him and Gerardin Goulet. 
This is a preliminary to an oath of peace in which " Gerardin Goulet and 
his kinsmen. ..and Huet Boine Broke and his kinsmen... pledge their faith 
and swear on holy relics... that each party pardons the other for everything, 
and they add in the oath that they will not give up speaking, drinking, 
eating and bargaining each with the other 2 ." 

This swearing to repentance with a number of kinsmen is 
the only survival of the oath-helpers of the kindred in France. 
The institution exists in the Salic law, but seems to have dis- 
appeared very early. 

The fourjurements so common across the border seem rare 



1 Bled, op. cit. p. 253: ' ' Ramembrance soil a tous que Bauduin Cloet, Henri 
Cloet, Wautier Cloet freres a sire Mikiel Cloet par se que fu enfans Thieri Cloet ; 
Jehans Cloet fil Wautier Cloet, Thieri Cloet fil Bauduin, Wautier le Lent, et Jehans 
Lemel, germains au dit sire Mikiel de par peire et par meire ont recognut de aus et 
des leurs bone, ferine et entiere pais a Willaume de le Bruyere, fil Gillon, et as siens, 
comme du fait et de 1'homicide perpetre par ledit Willaume en le personne dudit sire 
Mikiel. Lequelle pais li dessus-dit ont jure, leurs mains tendues as sains...." 

2 Espinas, op. cit. pp. 450-1, No. xv. : "C'est li pais de Huet Boinebroke et de 
Gerardin Goulet. i. Li eswardeur des pais dient en leur dit tout au commencement, 
ke Hues Boine Broke, por venir a boine pais, a boine amour a Gerardin Goulet et a 
ses amis, doit fianchier et jurer sor sains en ceste piece de tere a... homes de sen 
linage, se il prendre les veulent, ke quant li aventure fu avenue de lui et de Gerardin 
Goulet, ke il et si ami, quant il le seurent, en furent dolant et repentant et sunt encore 
et seront tous jours.. ..ke Gerardins Goule's et si amit...et Hues Boine Broke et si 
amit...fiancent par foil et jurent sors sains... ke il le pardonent tout li uns els autres, 
et mecent en leur sierment ke il ne lairont a parler, a boire, ne a maignier, ne a 
markaander li uns as autres." 



192 BELGIUM AND NORTHERN FRANCE 

in France : only at Lille does the Livre Roisin give the 
regulations for the repudiation of a kinsman by his whole 
kindred in the event of his having broken a treaty 1 . 

The 1 3th century custumal of Amiens seems also to expect 
that after a fight the kindred of either party will take an active 
part in the resulting feud, for we read that the authorities of the 
town can insist on an asseurement being given between the two 
parties and their kinsmen : 

" but if it should happen that one of the two parties should desist, or that 
both parties should desire not to give a mutual asseurement, for the fear of 
some member of the kindred who was not in the town, or who was a clerk 
or a crusader, whom they could not include in the asseurement, they should 
quite fully grant security on behalf of all except those kinsmen who were 
absent or were clerks or crusaders." These should be named ' by name and 
surname,' and the kinsmen should pledge themselves on oath that they 
would do their best to induce the others to join 2 . 

Certain transactions of the year 1290 between one Robert 
Latruie, squire, and the authorities of the town of Amiens, show 
that kinsmen received compensation for injuries which did not 
involve death. Robert had had his right hand struck off as 
penalty for an attack made by him on the Mayor. He appeals 
against the sentence, and an amicable arrangement was made 
between the Mayor and Council on the one hand and Robert 
and his kinsmen on the other, the former being condemned to 
pay one thousand livres as damages, in consideration of which 
sum Robert and his kinsmen give an asseurement. But there 
are two other documents in which Guy Robert's brother, and 
a Jean de Beaumont respectively acknowledge the receipt of 
200 livres, in reparation of the injury done to Robert 3 . As far 
as these documents go they bear out Roisin, who gives a scale 
of kindred compensation for afolure, maiming, as well as for 
slaying 4 . 



1 Livre Roisin, pp. 108-9. 

' 2 A. Thierry, Recueil de Mon. intd. de Phist. du Tiers tat (Paris, 1850), 
* PP- T 3 a ~3- * n H 1 ? Bishop Louis of TheVouanne ordains that under such 
circumstances clerks are to be obliged to join in the oath of peace: cp. Bled, 
Mm. de la Soc. des Antiquaires de Morinie, xix. (1885), p. 207. 

3 Thierry, op. cit., pp. 262 ff., Nos. xci.-xcm. 

4 Brun-Lavainne, Livre Roisin, pp. 106-7. 



BELGIUM AND NORTHERN FRANCE 193 

For the districts further west, the old Neustria, Beaumanoir 
gives a striking picture of organised feuds between the kindreds, 
with their consequent truces and treaties, though he has been 
suspected of denying to the bourgeois a right of feud which 
they actually possessed 1 . Writing in 1283, he tells us that 
among his sources for his Coutumes de Beauvais were the 
customs and usages of the country and the decisions of the 
Court of Clermont. He says : 

" it used to be the custom that one could take revenge by right of feud as 
far as the seventh degree of kinship 2 and this was not strange in the days 
of yore, for marriages could not be made within the seventh degree 3 . But 
as the degree for marriage has been made closer, beyond the fourth degree, 
so also one ought not to attack in feud any one who is further removed from 
the kindred than the fourth degree, because the kindred stops there in all 
cases, since matters have been so relaxed that marriages can be made ; 
except in claiming inheritance, for one can still claim inheritance on the 
score of kindred as far as the seventh degree 4 ." 

" If peace is made between the parties at feud, it is not convenient that 
all the kindred of the one side and of the other be (present) to make or assure 
peace : but it suffices if it is made or assured by those who were chiefs of the 
feud. And if there are any of the kindred who do not wish to assent to the 
peace made and accorded by the captain of the feud, they must make it 
known that (the other side) should beware of them, for that they do not 
wish to be in the peace 5 ." Exiles, and persons away travelling, are expressly 



1 Cp. Dubois, op. cit. n e partie, p. 45. As late as 1361 King Jean at Paris 
forbids ' les deffiements et les coutumes de guerroier ' both among nobles and 
roturiers, in peace and war. So also Charles V. in 1367 ; and the Parlement in 
1386 (Ducange, Gloss, ed. Favre, Vol. x. Diss. xxix. Des guerres privees, p. 106). 

2 Cp. Viollet, Hist, du droit civil (2nd ed.), p. 435. 

3 Charlemagne's law (and Pope Gregory's). 

4 ed. Salmon, Art. 1686. " II souloit estre que Ten se venjoit par droit de guerre 
dusques au setisme degre de lignage et ce n'estoit pas merveille ou tans de lors, car 
devant le setisme degre ne se pouoit fere mariages. Mes aussi comme il est raprochie 
que mariages se puet fere puis que li quars degres de lignage soit passes, aussi ne se doit 
on pas prendre pour guerre a persone qui soit plus loingtiene du lignage que ou quart 
degre, car en tous cas lignages faut puis qu'il s'est si alongies que mariages se puet 
fere, fors en rescousse d'eritage, car encore le puet on rescourre dusques ou setisme 
degre par reson de lignage." 

5 Art. 1678. (ch. lix.) " Se pes se fet entre les parties qui sont en guerre, il ne 
convient pas que tuit le lignage de 1'une partie et de 1'autre soit a le pes fere ne 
creanter ; ain9ois soufist asses s'ele est fete ou creantee par ecus qui estoient chief de 
la guerre. Et s'il sont aucun du lignage qui ne se vuelent assentir a la pes fete et 

P. 13 



IQ4 BELGIUM AND NORTHERN FRANCE 

excluded, and so are bastards, " because according to our law bastards have 
no kindred 1 ." 

The principle that there shall be no feuds within the kindred is limited 
^ in Beaumanoir to a prohibition for a man equally related to either side to 
join in a feud at all 2 . Clerics, women and children are excluded from feuds. 
There are all the proper concomitants of peace-making: 'arbitres,' 'garants' 
or 'plegii' and the distinction between 'truce' and 'peace.' The 'garants' 
were relatives, and could be drawn from within the seventh degree of kinship 3 . 

There is a modified form of fourjurement : any individual kinsman may 
claim security from the opposing kindred by summoning them to a court of 
justice and there 'forswearing' his kinsmen: i.e. undertaking not to help 
them in the hostilities 4 . This must presumably be done during the 40 days' 
truce. 

"For," says an early I5th century jurist 8 , in discussing quarantaine, 
"whenever any quarrels, frays or melees, chanced to occur, as a result 
whereof not a few slayings, maimings and other injuries most constantly 
used to happen, the kinsmen of those concerned remained in security and 
had to remain so, from the day of .the conflict... for 40 days. And if mean- 
while, before the lapse of these 40 days, any of the parentela, stock, kinship 
or affinity of either of the principal delinquents dared to act otherwise in any 
fashion, sentence and judgment were passed on them." 

The ordinance of St Louis was neither the first nor the last 
attempt to deal with the organised feuds and other manifesta- 
tions of kindred-solidarity throughout the Prankish Empire. 
Already Clovis (481-511) made the way easy for the individual 
to cut loose from his kindred and its liabilities 6 , and there can 
be no doubt that Childebert II. attempted to put a stop to the 



accordee par le chevetaigne de la guerre, il doivent fere savoir que Ten se garde d'aus, 
car il ne vuelent pas estre en la pes." 

1 Art. 1697. " Car bastars, par notre coustume, n'ont point de lignage." 

2 Art. 1667. " Quiconques est aussi prochiens de lignage de 1'une partie comme 
de 1'autre, de ecus qui sont chief de la guerre, il ne se doit de la guerre meller. Dont si 
dui frere ont contens (dispute) ensemble et li uns mesfet a 1'autre, cil qui se mesfet ne 
se puet escuser de droit de guerre, ne nus de son lignage qui le vueille aidier centre 
son frere." 

8 Etabl, St Louis, n. 

4 Art. 1684. " Nepourquant se aucuns se veut oster de la guerre, fere le peut en 
une maniere, c'est assavoir s'il fait ajourner ses anemis par devant justice et les fet 
contraindre tant qu'il viegnent avant et apres, quant il sont venu, en leur presence et 
par devant justice, il doit requerre qu'il ne soit pas tenus en guerre comme celui qui 
est apareillies de forjurer ceus qui firent le mesfet...." 

6 Boutillier, Somnu Rurale, L. I. ch. 34 (quoted by Ducange, loc. cit.)- 

8 Lex Salica, Tit. LX. " De eum qui se de parentilla tollere vult." 



BELGIUM AND NORTHERN FRANCE 195 

whole custom of composition for slaying in the enactment of 
599, which ordained that " not by any price of redemption shall 
he [the slayer] redeem or compound for himself," and that 
" should it by any chance happen that anyone shall stoop to 
payment [wergild], no one of his parentes or friends shall aid 
him at all, unless he who presume to aid him shall pay the 
whole of the wergild ; because it is just that he who knows how 
to kill should learn how to die 1 ." We know that this was not 
the last royal decree which tried in vain to check the incon- 
venient manifestations of kinship-solidarity. 

Various later kings issue decrees aimed against the solidarity 
of the kindred, with a view to checking feuds, and confining 
them to those immediately concerned. Thus Philip Augustus 2 
promulgates an edict decreeing that when any ' incident ' (fet) 
occurred those who were actually present should look to them- 
selves, but that all the kindred (lignages) of either side were to 
have 40 days in which to purchase truce before becoming liable 
to attack 3 . St Louis repeated this decree in 1245 and again 
in 1257*, but as his successors had to reiterate it, we may 
suppose that it was persistently disregarded, though Beaumanoir 
duly gives the edict in his Coutumes de Beauvais. 

For Champagne we have some evidence that unless the 
kindred of the slain proceeded against the slayer, it was im- 
possible to bring him to justice. 

The Red Book of the Echevinage of Reims gives a case from 1303, in 
which two persons, Miles and Renaut, were seized by the archbishop as 
concerned in the death of one Anselet, a tailor. They were duly ' cried ' in 



1 Pertz, Leg. I. 10 (Seebohm's transl.). Cp. Charlemagne, Capit. Car. M. I. 5, 
1 80: "Neximus qua pernoxia interventione a nonnullis usurpatum est, ut hi qui 
nullo ministerio publico fulciuntur...indebitum sibi usurpant, in vindicandis proximis 
et interficiendibus hominibus," etc. Ducange, loc. cit. p. 106. 

2 Or Philip the Bold ? See Dubois, op. cit. p. 73. 

8 apud Beaumanoir, Beugnot's ed. ix. a. 13. "li bons Rois Phelipes fist un 
etablissement, tel que quant aucuns fes est avenus, cil qui sunt au fet present se 
doivent bien garder depuis le fet. Mais toz les lignages de 1'une partie et de 1'autre 
qui ne furent pas au fet present, ont par Petablissement le Roi quarante jours de trives, 
et puis les quarantes jours il sunt en guerre." 

4 Cp. Dubois, op. cit. pp. 73 f. and Luchaire, Manuel des Institutions Francises, 
pp. 23off. 

132 



196 BELGIUM AND NORTHERN FRANCE 

public places in the city, four times, "and in addition the Provost sent to the 
father, son, brother, wife and to the other kinsmen (amis) of the said Anselet" 
to invite them to take proceedings. But no one came forward, whereupon 
Miles and Renaut demand to be set free, and the Echevins declare that their 
demand is in accordance with the ancient custom of the city 1 . 

The custom is more clearly stated in a later record, of 1333. Robert 
Ingrant and his brother Jesson are accused of slaying Gontier of Unchar, 
sergeant of the ' baillie ' of Reims. When they appeared in court the widow 
and son of Gontier were summoned, with the latter's guardians, and further 
several of Gontier's brothers and sisters and cousins 2 . Altogether 18 persons 
are named. These declare in court that they believe the Ingrant brothers 
to be innocent, and the case is dismissed forthwith 3 . 

That asseurement still included a considerable number of 
kinsmen is vouched for by the following case of 1255: 

"There was dissension between Wautier Buiron on the one side and 
Prioul le Martier on the other. The said Prioul le Martier complained of 
the said Wautier and desired that he should give him surety on his own 
behalf and on that of his kinsmen, because he did not trust him. The said 
Wautier gave him surety on his own behalf and on that of his kinsmen, with 
the exception of six whom he named, and he was to include them in the 
asseurement by a certain day if he was able, [acting] in all good faith, to 
do so. He returned on the day and told them on his honour that he could 
not include them. Judgment was given that he should stand warranty for 
them (?) or include them in his asseurement*." 

A register of judgments given in 1288 at the chief assizes 
of Troyes contains a deed of reconciliation of considerable 
interest : 

This is the peace of Raolin d' Arge'es, and of his children and of their 
kindred, on the one part, and of the Hermit of Sethenai, and of his children, 
and of their kindred, and of all those who aided him, on the other part, 
brought before the court of Champagne. The Hermit swore on holy relics, 



1 Varin, Doc. intd. de fhist. de France, II. i, pp. 43 f. 

2 ' Cousins charnez.' 

3 Varin, loc. cit. n. 2, pp. 666, 685 f. 

4 Livre Rouge de fdchevinage (in the Municipal Archives at Reims), p. 37 : " Descors 
estoit entre Wautier Buiron d'une part et prioul li marlier d'autre. Cil prioul 
limartiers se plaignoit de celui Wautier et voloit qu'il laseurast de lui et des siens 
pource quil se doutoit de lui. Cil Wautiers laseura de lui et des siens areis de. vi. 
quil nomma et les dut metre en 1'aseurement tres qua I. jour, se il pooit par sa foit 
il reuint au jour, et dit lor sa foi quil nes i pooit metre. Droiz en fu diz quil les 
fournirat ou il les meist en son asseurement." For the (somewhat hypothetical) 
rendering of fournirat cp. Ducange, ed. Favre, s.v. vadium, p. 2 30 b. 



BELGIUM AND NORTHERN FRANCE 197 

with seven of his kinsmen, that no good had accrued to him through the 
death of Kaolin d' Argues : that, on the contrary, he got grief rather than 
joy out of it : and the Hermit has given 100 livres to the kinsmen (amis) of 
Raolin for the slaying, to build a chapel where mass will be sung for the 
soul of the dead ; and Girard, son of the Hermit, is to go across the sea, 
and start in the week in which St Remi's Day falls (Oct. i), and return 
when he will, but let him bring back letters [to show] on the testimony of 
worthy folk, that he has been across the sea. And through this deed, 
good peace is granted by the children of Raolin d' Arge"es, and by their 
kindred, and by all their supporters on the one part ; and the children 
of Raolin ask the court that if the children of the Hermit, or the kinsmen, 
demand deeds of witness from the court, that the court should grant (them) 
to them '. 

We may rest assured that one such document from Cham- 
pagne vouches for the existence of many more. Indeed, with 
regard to the whole of Northern France, exclusive of Normandy 
and Brittany, it would be safe to say that it is rather a lack of 
sources than any absence of the customs we are describing, 
which has caused the almost complete neglect of the subject 
noticeable in works on French history and legal institutions. 

In Burgundy there are only the faintest traces of kin- 
solidarity in the Middle Ages. We find arbitrators negotiating 
an effaitement or treaty 2 , as in the case between 

"Jehan de Baissey, escuier, frere du feu Guillaume de Baissey et plusieurs 
de ses amis, d'une part, et Jehan de Saulx... escuier et plusieurs de ses amis 
d'autre part," but only the slayer, Jehan de Saulx, offers compensation 3 . 



1 From Ducange, loc. cit. pp. 103-4 : "C'est la paix de Raolin d'Argees, et de ses 
enfans, et de leur lignage, d'une part : et de 1'Hermite de Sethenai, et de ses enfans, 
et de leur lignage, et de totes ses aidans, apportee en la cour de Champagne. 
Li Hermite jura sur sains li vuitiesme de ses amis, que bien ne li fu de la mort de 
Raolin d'Argees, ains Ten pesa plus, que biau ne Ten fu : et a done li Hermite cent 
livres as amis Raolin le mort pour faire une chappelle, ou 1'en chantera pour 1'ame dou 
mort : et en doit aler Girard li fils 1'Hermite outre mer, et movoir dedans les octaves 
de la Saint-Remi, et revenir quand il voudra : mais qu'il aport lettres qu'il ait este 
outremer par le temoing de bones gens : et parmi ce fait, il est bone fat's des enfanls 
Raolin d'Argees, et de leur lignage, et de tous leur aidans d'autre part, et requerent li 
enfant Raolin a la court, que se li enfant 1'Hermite, ou li ami requerent lettres de 
tesmoignage a la court, que la court leur doint...." 

2 G. Valat, Poursuite privie et composition ptcuniairt dans rancienne Bourgogne 
(Dijon, 1907), p. 108. 

s Ib. pp. 121-3: "je lediz Jehan de/Saulx suis tenuz de fairs' a faire 1'obseque 
d'icelluy Guillaume..." etc. 



198 BELGIUM AND NORTHERN FRANCE 

The brother of the slain, however, does include the other kinsmen (amis 
charnels) in the reconciliation : " Further, I, the said Jehan de Baissey, will 
hereupon grant and consent that good peace be and remain between my 
friends and the friends of the said Jehan de Saulx. And herewith I will 
and do answer for all the blood-friends of the said deceased Guillaume, 
who make demands of the said Jehan de Saulx on account of the said 
slaying and misdeed [committed] on the said Guillaume de Baissey 1 ." 

This is in 1389. In the Ancien Coutumier of Burgundy we 
find it provided that in the case of a feud between vassals in 
consequence of a slaying, their lord can order them each to 
choose two or three of their ' amis ' as arbitrators 2 . But the 
wergild goes only to the children of the slain ; and in the same 
chapter we find the slayer warned to beware of the father and 
brother of the slain. A little further north he and his kindred 
would have to beware of the whole of the injured kindred. 

At Sens, in 1200, we find the husband paying compensation, 
on behalf of his wife, to the Abbot of St Colomb for a vassal 3 . 
This document does not however exclude the possibility that 
he also paid wergild to the relatives. 

For traces of kin-solidarity among the noble classes we do 
not depend entirely on the picture drawn in the legal compilation 
of Beaumanoir. Literary evidence for a somewhat earlier time, 
it is true is also at hand in the older Chansons de Geste. In 
especial, the Song of Roland gives a lively picture of the 
responsibility of kinsmen in the story of the trial of the traitor 
Ganelon. When the latter stands disgraced before the court, 
thirty of his kinsmen rally round him 4 , and one of them, Pinabel, 
declares that he will challenge any knight who dares to 
condemn his kinsman to death a threat which prevents all but 
the bravest, Thierry, from giving an adverse verdict . On its 
pronouncement, the kinsmen of Ganelon plead their right to 



1 G. Valat, loc. cit. p. 123: "Item sur ce, ottroyerai et consentirai je lediz Jehan 
de Baissey que boine pais soit et demeurat entre mes amis et les amis dudit Jehan 
de Saulx. Et avec ce, je me feray et fais fort en ceste partie de tous les amis 
charnelz dudit feu Guillaume qui aucune chose vouldroient demander audit Jehan de 
Saulx & cause de ladite mort et meffait dudit Guillaume de Baissey." 

2 Marnier, Ancien Coutumier de Bourgogne, ch. XXIX. (quoted by Valat). 

3 Valat, op. cit. p. 105. 

4 Chanson de Roland (ed. L. Gautier, Tours, 1872), 1. 3766 etc. 



BELGIUM AND NORTHERN FRANCE 199 

take up Thierry's challenge, and the Emperor consents to the 
duel but demands sureties. Instantly the thirty kinsmen pledge 
themselves to the righteousness of Ganelon's cause 1 no light 
responsibility, as the sequel shows. Before the duel Thierry 
offers Pinabel peace, but the latter refuses, declaring that he 
intends to uphold (the honour of) his whole kindred 2 . Pinabel 
is killed by Thierry, and the Franks declare : " Now it is right 
that Ganelon should be hanged, and all his kinsmen who have 
pleaded for him 8 ," and the thirty sureties are all hanged forthwith 
upon one tree 4 . Hanging is perhaps an extreme form of penalty, 
but these incidents would not appear in the story if there were 
not some basis for them in contemporary judicial procedure. 
We may suppose that the thirty were put to death as a punish- 
ment for having sworn a false oath of compurgation for that is 
about what their action amounts to 8 . 

None of the other Chansons de Geste afford quite such striking 
evidence as this. However, in the Chevalerie Ogier, we find 
Ogier the Dane offering 'self-doom/ as the Icelanders would 
express it, to the kindred of the man he has slain : 

" Si ai mort ton fil, ferai toi amendage 
Com jugeront la gent de ton lignage 6 ." 

And we even find Charlemagne depicted somewhat in the guise 
of a paiseur of the northern towns, summoning the kinsmen of 
Ganelon and the kinsmen of Aimon, and commanding them to 
make peace, which they do in the orthodox fashion : 

" Charles a fait la pais, si sont entrebaisie' 7 ." 
In the Chevalerie Ogier, Ogier 's numerous kindred are represented 



1 Ib. 1. 3846 : " xxx parenz li plevisset leial." 

2 Ib. 11. 3905 f. : "Dist Pinabels : ' Ne placet Damne Deu ! 

Sustenir voeill trestut mun parental.' " 

3 Ib. 11. 3932 f. : " Asez est dreiz que Guenes seit penduz 

Et si parent ki plaidet unt pur lui." 

4 Ib. 1. 3958. 

8 Cp. v. Amira, Zur Salfrank. Eideshilfe, Germania, N. F. vm. (1875), p. 64, 
"Das altfrankische Gottesurtheil ist Bestarkungsmittel des Unschuldseides. " 

6 11. 8753-4. Quoted by Flach, Origines de Fancienne France, from whom the 
following examples are also taken. 

7 Renaus de Montauban (H. Michelant ed.), p. 441. 



200 BELGIUM AND NORTHERN FRANCE 

as interposing between Charlemagne and the hero 1 . But kin- 
solidarity is represented as going further than this, for it 
induces the kinsmen of Girard de Viane, whom the Queen has 
affronted, to fight against her 2 . It is very instructive to note 
that in spite of the prevalence of feudal ideas, duty to one's 
kinsmen still comes before duty to one's lord. Thus when 
Charlemagne reminds Ydelon that he is his liege man, and bids 
him avenge his Emperor on Richard the son of Aymon, Ydelon 
does not hesitate to refuse : 

"Sire, dist li Baiviers, en moie foi je non. 
Cousin somes germain, pres nos apartenom. 
Ja n'aura Richars mal dont garder le puison 3 ." 

And Ogier goes even further in his reply to a similar proposition, 
declaring that he will aid Richard with four thousand companions, 
and will fail him for no man on earth 4 . 

In other cases, in order not to break openly with his lord, 
the kinsman has recourse to stratagem, as Turpin to save Ogier, 
or as when the kinsmen of Renaus urge Roland to strike one 
blow only at him 'por sa foi aquiter 5 .' It is instructive to 
compare this attitude with that of Hagen in the Waltharius poem, 
written in Germany in the loth century. Hagen sees his nephew 
killed by Walther, and yet refuses to fight his old comrade ; it 
is only when the honour of his king is at stake that he flings 
aside the claims of friendship and enters on the fight 6 . 

This painfully incomplete survey of the duration of kin- 
solidarity in Northern France seems to justify the following 
conclusions. In the North-East districts, at any rate in the 
towns, cohesive kindreds continued to exist and to play no 
small part in local affairs until the I4th and even the I5th century. 
Further west we have little direct evidence save for the noble 
classes, and of them it may be said that the principle of kinship- 
solidarity survived in a very marked degree until the end of the 
1 3th century. Such scraps of evidence as we have amassed for 



1 Chev. Ogier, 11. 9530 f., 9560 f., 9586, 9590 f., 9680, etc. 

1 Girard de Viane, 1. 53. 3 Renaus de Montauban, 11. 16 f. 

4 Ch. Ogier, pp. 388 f. B Renaus de Montauban, p. 239, 1. 30. 

6 Ekkehards Waltharius, vu. and ix. 



BELGIUM AND NORTHERN FRANCE 2OI 

Champagne and Burgundy suggest that a certain degree of 
kin-solidarity survived to about the same period. For an earlier 
time it has even been maintained that feudal power was founded, 
not on feudal ties but on kinsmen. " Le baron est, avant tout, 
un chef de famille ou de clan. II a comme allies naturels, 
comme ' charnels ou naturels amis,' les autres seigneurs de sa 
parent^, il a sous son autorite directe ses fils et ses petit-fils, des 
collate>aux, freres, neveux, parents plus e'loigne's 1 ." 

In his study of the I3th century treaties between kindreds 
Dubois took occasion to propound the question : " Pourrait-on 
e"tablir un rapport de filiation entre les prescriptions des capitu- 
laires et les bans des e*chevinages du Xlil e siecle?" He answers 
it thus: "Ce serait s^duisant mais bien audacieux. II serait 
preTe"rable d'attribuer les ressemblances de ces dispositions pe*nales 
a 1'analogie de l'e"tat social qui les a necessities les unes et les 
autres, plutot qu'a une succession juridique tres hypotheque," 
and he thinks it safest to draw the conclusion that kinship- 
solidarity had lapsed in the centuries that intervened between the 
Carolingian period and the I3th century 2 . It maybe possible 
to hold this view if France be considered entirely apart from 
the rest of Northern Europe, but when we have approached 
French institutions by way of North Germany and the Nether- 
lands, it is impossible for us not to recognise in the towns of 
the North-East the lineal descendants, in an unbroken line, of 
the ancient Teutonic kindreds. There are extraordinarily close 
resemblances between the Lex Salica and the Capitularies 
on the one hand, and the actual practice of the I3th and 
1 4th centuries on the other, and we cannot really attribute these 
resemblances to a critical study of the former on the part of 
mediaeval antiquarian lawyers. But there is another and more 
cogent reason for postulating an unbroken development. Neither 
history nor ethnology justifies us in assuming that when individuals 
find themselves in an anarchical state of society, they will even 
attempt to form cohesive kindreds for mutual protection. They 
may segregate themselves into artificial groups, such as gilds or 

1 Flach, op. cit. pp. 445 f. a Dubois, op. cit. p. 5. 



2O2 BELGIUM AND NORTHERN FRANCE 

secret societies, or they may submit themselves to a lord, but 
there is no evidence to support the theory that they will bethink 
themselves of their relatives, and decide that they might do 
more for their third cousins, let us say, than they have hitherto 
done. Other countries suffered equally, or more, from an an- 
archical state of society without the slightest trace of any such 
consequences. The cohesive kindred is no mushroom growth, 
but a heritage from prehistoric times, and when once it is 
disintegrated there is nothing to make it cohere again. From 
this point of view the strength of the kindreds in the towns is 
of great importance, for it implies that the immigrants who 
formed the nucleus of the towns in Picardy and the Netherlands 
did not enter them as individuals, one by one, but in groups of 
kinsfolk. Whether we may connect the conjurati and congildones, 
against whom so many enactments of the capitularies are directed, 
with groups of kindred which had perhaps entered into special 
agreements, it is impossible to say ; but it seems that the 
strength of the great merchant families, whom Luchaire terms 
' 1'aristocratie populaire,' was founded on kin-solidarity 1 . 

B. Normandy. 

In Normandy a search for traces of the solidarity of the 
kindred is but meagrely rewarded. As in Denmark, we are 
told that a slayer cannot be re-instated by the Duke unless he 
has first made peace with the ' friends ' of those whom he slew 2 , 
but this may mean no more than the immediate family. And 
this is repeated in the second part of the laws, with ' King ' for 
' Duke.' On the other hand it is added that this reconciliation 
with the 'friends' is of no use to the slayer unless the Duke's 
pardon can be obtained 8 . That the relatives of the slain family 



1 Luchaire, op. cit. p. 357. 

a Coutumes de Normandie, ed. Tardif (Paris and Rouen, 1900) : Tres Ancien 
Coutumier. xxxvi. "Des pes fuitis. Li dus ne puet fere pes d'omecide envers celui 
qui 1'a fet, se il n'est avant reconciliez as amis a celi qu'il ocist." So also in the 
second part of the laws, with 'King' for 'Duke': Ixxxix. "si que il face pes o les 
amis al mort." 

8 xxxvi. 4. "Se li homicides puet aquerre la pes as amis a eels que il a ocis, ce 
ne vaut riens se il n'a la pes le due." In the treatise on procedure in the Exchequer 
Court (first half of isth century), the slayer is directed to summon the kinsmen of 



BELGIUM AND NORTHERN FRANCE 2O3 

did not invariably take an active part in bringing the slayer 
to justice may be deduced from the following : " 

" If a strong man kills and maims someone, and none of the lignage 
(of the slain) pursues him, the law will seize the culprit, and he will be in 
the prison of the Duke so long as he does not clear himself by the ordeal of 
water 1 ." 

The following passage throws perhaps more light on the 
arbitrary methods of the Duke than on the solidarity of the 
kindred : 

" The bailiffs of the Duke used to take the kinsmen of anyone when he 
had committed some wrong.. ..So it happened with Uede le Mane and his 
sons at the hands of the forestiers of Bertrand of Verdun, who had captured 
no culprit but had put in prison several of his 'lignage' who had committed 
no wrong, and who were acquitted on judgment 2 ." 

On the other hand we must note one or two cases in which 
the responsibility of the kin is ignored or set aside. There are 
guarantors who are kinsmen, but there are no oath-helpers of 
the kindred ; on the contrary it is expressly stated that the 
' jurors ' who most nearly answer to them, shall not be related 
to either party 3 . But more remarkable for its deliberate setting 
aside of the claims of kindred is the paragraph " Of the care 
of orphans," where the theory of guardianship runs so totally 
counter to all tribal ideas that it is worth quoting in full : 

"Who shall have charge of the orphan heir whom it behoves to be in 
another's charge ? The mother shall not have charge of him. Why ? 
Because if she took a husband and had children by him, those children 
for envy of the heritage would slay their elder brother and be heirs 



the slain to the next assizes, there to set forth their objections, if they have any, 
to the pardon already (conditionally) granted by the King. " Coustume, Stille et 
Usage" etc. ch. xxx., in Mtm. de la Soc. des Antiquaires de Norm. XVIII. (1851). 

1 xxxix. " Se uns forz hom[s] ocit aucun e mehange, e nus del lignage ne le 
suit, la justice prandra 1'omecide " etc. If the plaintiff in such a case is incapacitated 
by youth or age the 'Grand Coutumier' (c. 1275-1300) allows the suit to be taken 
up by any relative on whom the lignage agrees : Bourdot de Richebourg, Cout. 
geniral, t. IV. cap. Ixx. 

2 Ixi. " Li bailli le due souloient prandre les paranz a aucun quant il avoit 
fet aucun mesfet...ainz avoient mis en prison plusors de son lignage qui n'avoient 
rien mesfet, qui furent quite par jugement...." 

8 xxvii. i. "Li jureeur soient esleu lealment par la justice sus la veue de la terre, 
tel que ne soient del lignage a 1'une partie ne a 1'autre, ne leur home " etc. 



204 BELGIUM AND NORTHERN FRANCE 

[themselves], or the husband himself would slay his step-son in order to 
give the heritage to his sons. Who then shall have charge of him? His 
cousins ? Nay. Why ? Lest they perchance should ardently desire his 
death and covet his heritage, for that cause slaying the innocent. To avoid 
then such treachery and to eschew such cruelty it was established that 
the orphan be in the charge of him to whom his father was bound by (act 
of) homage 1 ." 

The ancient power and solidarity of the kindred must have 
been sadly shattered before this triumph of feudalism could have 
been rendered possible. 

Compulsory truces appear in the laws, but the kindred is not 
mentioned in connection with them, and the truce seems to be 
merely between individuals 2 . 

The Court of the Exchequer has left on record a large number 
of cases from the I3th century 3 , of which however very few 
allude to manslaughter 4 . From these few cases it would seem 
that the slayer is usually banished 5 , and that his brother may by 
special leave receive the forfeited property 6 . In one case the 
slayer appears to make a payment to the brother of the slain 7 . 
There is here no trace of the solidarity of the kindred. 



1 xi. " Qui gardera 1'oir orfelin que il covient estre en autrui garde? La mere ne 
le gardera pas. For qoi ? For ce qe se elle prenoit mari e en avoit emfanz, li emfant 
per la covoitise de 1'eritage ocirroient leur einzn frere e seroient oir, ou li mariz 
meismes ocirroit som fillastre por doner a ses filz 1'eritage. Qui le gardera done? 
Le garderont si cosin? Nanil. Por qoi? Que il ne beent par aventure a sa mort e 
covoitent son heritage, par que il ocient 1'innocent. Por oster done tel desleaute e por 
eschiver tel cruelte" fu il establi que li orfelins soit en la garde a celui a qui ses peres 
estoit liez par homage." 

2 Grand Coutumier (loc. cit.), ch. LXII. etc. Cp. Cauvet, Des treves etablies entre 
particuliers, Mtm. de la Soc. des Ant. de Norm, xxviu. (1869), pp. 60 ff. 

3 L. Delisle, Recueil dejugements de Fechiquier de Norman die au xm silcle, Paris, 
1864. 

4 Nos. 4, 444, 579, 585, 599, 618 (648), 708, 747, 753. 
8 No. 599 (1236). 

6 No. 708. "Judicatum est quod Limare, miles, faciet adjornare dominum Jo- 
hannem de Tornebu ad assisiam ; et si ipse non potest assignare quatuor libras terre 
Renaudo Burnel pro morte fratris sui sine licentia ejusdem Johannis et de jure de 
terra quam tenet de feodo suo, ipse assidebit dictum redditum eidem alibi in terra 
meliori." 



CHAPTER VII 

ENGLAND 

THE English legal evidence differs from most of the law 
which we have been considering, in that Anglo-Saxon legislation 
generally partakes rather of the nature of statutory than of 
customary law. Unlike the latter, which usually finds written 
expression once for all, the Anglo-Saxon laws are issued at 
many different times by a long succession of kings. It is 
necessary to insist on this aspect of most of the Anglo-Saxon 
law, as it makes it essential for us to proceed chronologically 
and with due attention to the political geography of the period. 

The kingdom of Kent is the first to which we must turn our 
attention. In view of the nature of the impulse which set them 
down in writing, ^thelberht's laws, of the first three or four 
years of the 7th century, must surely be regarded as an attempt 
to state existing law, rather than an issue of new legislation. 

The word used in the Kentish laws for wergild is leod or 
leodgeld, and the first reference of importance to us is contained 
in paragraphs 2I-23 1 : 

" If anyone slay a man, let him pay an ordinary wergild [the wergild of 
the ordinary free man], 100 sailings. 

22. If anyone slay a man, let him pay 20 sailings at the open grave 
and (let him pay) the whole wergild within 40 nights. 

23. If a slayer escapes from the land, let the kinsmen pay half the 
wergild." 

Before we discuss these clauses we must go on to the only 
other which concerns us, 30 : 



1 Liebermann, Die Gesetze der Angehachsen, I. p. 4. 



206 ENGLAND 

" If anyone slay a man, let him pay out of his own property and with 
genuine currency whatever it may be." 

Since this last clause clearly establishes the sole liability of 
the slayer for wergild, 23 can only refer to the secondary 
N liability of the kinsmen 1 , in case the slayer leaves the kingdom 
without paying the wergild. It is however to be noted that 
^ even in this case their liability is limited to half the wergild. 
In fact, as regards the payment of wergild, this law, attributed 
by Liebermann to the years 601-4, already exhibits a stage in 
the disintegration of the kindred almost as advanced as that of 
King Hcikon Hakonarson for 13th-century Norway: "If the 
slayer escapes in his outlawed state, then let the kinsmen pay 
half payment... if his money does not suffice 2 ." 

With regard to the distribution of wergild we are told 
practically nothing, but we may guess that though the slayer's 
kin is generally the first to shuffle off its liability, by the time 
that the slayer stands alone the body of kinsmen on the 
other side has generally dwindled into a comparatively small 
group 3 . 

The other Kentish laws throw no light on our problem, 
although the laws of Hlothhere and Eadric (before 686) give 
the additional information that the amount of the noble's wergild 
was 300 sailings. 

It is of course quite conceivable that these Kentish laws 



1 Brunner, Sippe undWergeld, pp. r6f., refers to 23 as proving that the liability 
of the kindred was primary, but this view can hardly be maintained if the clause is 
read in conjunction with 30. 

2 See supra, p. 50. In Denmark, as late as 1558, the kindred were liable for 
the -whole wergild if the slayer fled (p. 83, supra). In the Siebenharde district of 
Schleswig the kinsmen pay a whole wergild for a kinsman who slays a man after truce 
has been made (his own property being forfeited, p. 104, supra). In a North Frisian 
charter the kin only appear to be liable for one-third of the wergild, unless the slayer 
fled, when they are to be liable for double the amount (p. 106, supra). 

8 In a Danish wergild case of 1567, at Helsirigor, we find the kinsmen of the 
slain objecting to share the wergild with one of their number, a certain Iver Jorgensen, 
in Jutland, on the ground that when one of their kindred was so unfortunate as to kill 
someone, and they had asked a contribution towards wergild from this Iver, "he had 
always refused, and would not contribute towards the wergild with them." (Case 
of Michill Bagge, etc., 17 March 1567; given in P. V. Jacobsen's Uddrag of 
Helsingoer's Thingb^ger, Ny. Kgl. Saml. No. 697 f. 410. ) 



ENGLAND 2O/ 

showing the limitation of liability to the slayer may be in the 
nature of revolutionary innovations, like that of Knut VI. in 
Denmark 600 years later 1 , and that they may consequently not 
represent actual custom. There are however three points which 
should make us doubtful about accepting this hypothesis. Firstly, 
if yEthelberht, urged thereto by the Church, had been aiming at 
restraining feuds, would he not be likely to have followed the 
Prankish lead of Childebert II. in $99*, and condemn the slayer 
to death? Secondly, already in the laws of Hlothhere and 
Eadric we observe that the kindred play no part in the oaths 
of compurgation, neighbours taking their place 3 . This does not 
look as if tribal custom could be very strong. Thirdly though 
this is a small point the laws of Wihtraed (695-6) show us 
wergild being paid to the king by a defaulter, as a mere fine 
for breach of law 4 a phenomenon which only occurs, outside 
England, in the 1 3th century Sachsenspiegel and which indicates 
that wergild was not too large an amount for the individual to 
pay. 

This appearance of the wergild as a mere fine, paid by the 
individual to the king, is extremely common in the Wessex laws, 
to which we must now turn our attention. 

The laws of Ine (688-95) throw little light on wergild 
payments. 

We hear of the slaying of a stranger, met with off the highway, who can 
be killed as a thief, on suspicion, and his lord and associates {gegildan} 
may not prove the contrary. If however the slayer conceals his deed, the 
kinsmen of the slain may swear him clear 5 . 

This is the first appearance of the gegildan 6 in connection with 



1 See supra, p. 82. 2 See supra, p. 195. 

3 5- 4 26. 

5 C. 21. 

6 As far as the context is concerned, the gegildan in this passage could include 
kinsmen, but in. view of the fact that the laws of Alfred regularly seem to regard 
gegildan as a substitute for kinsmen, this is a doubtful assumption. If we suppose 
that gegildan has the same meaning as in Alfred, we could imagine that though they 
might be responsible for wergild if one of their number committed a slaying, yet 
they are not yet regarded as legally competent to clear the memory of their associate 
from an accusation of theft. 



208 ENGLAND 

wergild : we shall find that it is not the last. The next passage 
also refers only to the slaying of a stranger : 

" If anyone kills a foreigner (i.e. not a West Saxon) the king has two parts 
of the wergild, the son or kinsmen the third part. But if the slain man has 
no kinsmen, half goes to the king and half to the gestft? which we prefer, 
with Schmid, to translate 'nobleman' rather than 'comrade 1 .' 

Of more importance for our purpose is c. 24 : 

"If an Englishman in penal slavery escapes, let him be hanged and not 
paid for to his lord. If anyone slays such a one, let him not pay wergild 
to his kinsmen, if they have not redeemed him [from slavery] within 12 
months " ; 

i.e. if his kinsmen have allowed 12 months to elapse without 
redeeming him from slavery, they are not entitled to compensa- 
tion. The kinsmen of the wrong-doer are thus not under any 
compulsion to redeem their kinsman from slavery, and it is 
evidently conceivable that they will thus forsake him, since it 
has been found necessary to have a law regulating their claim 
to wergild. 

The next clause of interest for us is c. 27, where it is laid 
down that if the father of an illegitimate child has not acknow- 
ledged his offspring, he does not get the wergild if the child is 
slain, but it goes to the lord (of the slain) and to the king. The 
clause seems to suggest that the father would have been entitled 
to the whole wergild if he had acknowledged the child to be his. 
Tribal custom however would surely have handed over the 
wergild to the child's maternal kinsmen. 

We hear of oaths of reconciliation, but not in relation to 
ordinary feuds between kindreds. The relatives of a captured 
thief must swear a&as unf&hfta* to the man who captured him. 

C. 74 is often quoted as a proof of the primary liability of 
the kindred of the slayer : 

" If a British slave (^eowwealK) slays an Englishman, his owner shall 
deliver him up to the lord and relatives of the slain man, or pay 60 shillings 



1 .13. Professor Chadwick points out to me that gesift is clearly used as inter- 
changeable with gesiftcund man, nobleman, in c. 50. As the word in this sense soon 
became obsolete, the Latin translation, congildottes, consoa'i, carries little weight. 

2 Orfeide, urfehde, oirvede in Danish, German and Dutch sources. 



ENGLAND 209 

for the life of the slave. But if he will not give this sum for him, he must 
free the slayer, whose relatives shall thereafter pay wergild, if he has a free 
kindred (magburh l ) : if he has none his enemies may avenge themselves on 
him." 

But since, as Toller, Schmid and Sweet concur in thinking, 
and as Liebermann seems inclined to assume, \eowwealh means 
'British slave,' this passage is of no use to us in deciding the 
liability of Anglo-Saxon kindreds, for it must refer to the 
kindred-system of the Britons, which the dominant race would 
obviously exploit where possible. In this case the servile Briton 
is to be returned to his kindred, from which the penalty of his 
misdeeds will be exacted. The passage goes on to say that a 
free man need not join in (wergild)-payment with a slave, unless 
he wishes to buy off revenge from him, nor a slave with a 
free man ; i.e., as long as a man is a slave he is not of the 
kindred, and none of his free kinsmen need help him. There 
is however a difficulty in the Anglo-Saxon, which runs : " Ne 
bearf se frige mid bam beowan maeg gieldan, buton..." etc. 
There seem to be two alternatives. We must either read the 
dative, mage, and translate : ' The free (man) need not pay 
with the slave kinsman ' etc., or we must take mag gieldan as 
a compound verb 'to pay wergild on behalf of a kinsman.' 
It is obvious that the existence of such a word would indi- 
cate a certain solidarity of the slayer's kindred at a previous 
date, even though it be a air. Xey., used in a British context, 
and clearly misunderstood by at least one of the MSS. 2 But 
is mceggieldan a word ? There are textual difficulties in both 
alternatives. In the former, it is odd that none of the MSS. 
should have the dative form. In the latter, though it is a 
common practice in the Anglo-Saxon charters to write a com- 
pound as two distinct words, this is not the practice of any of 
the texts of the laws ; in fact, to judge by Liebermann's careful 
edition, this would be the only instance of such separation. 
Still, two of the MSS. do write it as one word 3 , and the late 
Latin translation of the passage found in Leges Henrici (70, 5 b ) 



1 It is perhaps worth noting that the first occurrence of the word magburh 
'kindred,' in the A.S. laws, occurs in this British context. 

2 Ld. has: " mid f>am Beowan men gieldan." 3 E, So. 

P. 14 



2IO ENGLAND 

evidently treats it as one word, Latinising it as meggildare. 
There is thus considerable textual evidence in favour of a verb 
mceggieldan. But perhaps the linguistic difficulties of such a 
form have hardly been sufficiently considered. Let us look at 
other cases connected with wergild where gieldan governs the 
accusative, as in this compound. In Ine, c. 24, we have : ne 
gylde him mon his mcegum, ' let him (the slayer) not pay 
(wergild) for him to his kinsmen,' and 54, i, also speaking 
of the slayer, gif him mon gilt, ' if one pays (wergild) for him.' 
We see then that \om mon gieldan means ' to pay wergild for 
the (slain) man." Therefore fyone) mceg gieldan could mean 
nothing but ' to pay wergild for the kinsman whom one has 
slain.' Yet we are invited to translate mceg gieldan as 'to (help) 
pay wergild on behalf of a kinsman who is a slayer' I do not 
wish to minimise the difficulties of the text, but I cannot help 
thinking that it is easier to explain them than to make gieldan 
with the accusative mean something quite inconsistent with its 
invariable meaning. It would therefore be more than rash to 
attempt to deduce any liability of the kindred, in Ine's time, 
from the hypothetical occurrence of such a verb 1 . 

At the end of Ine's laws we do meet a term with a meaning 
analogous to that of the supposed mceg gieldan, but there is 
nothing hypothetical about the occurrence of this word mcegbot 
' kin-compensation.' But it is a startling fact that this ' kin- 
compensation ' only refers to the spiritual kinship between 
godfather and godson, though it must obviously once have had 
the same signification as the Scand. cettarbdt : 

" If anyone slays the godson or godfather of another man, let this nuegbot 
be as high as manbot (the fine to the lord) : let this hot increase in proportion 
to the wergild, just as the manbot does which is due to the lord. If however 
it be [a case of] the king's godson, let [the slayer] pay the wergild to the 
king as to the (slain man's) kindred." (Ine, c. 76.) 



1 Is it not possible that mceggieldan is an awkward translation, misunderstood by 
later copyists, of some British term ? Or it would be possible to suppose that the 
original, correct reading was "mid |am |>eowan mxggield gieldan" and that a later 
scribe had omitted the gield. There is no objection to a noun *mceggield (cp. 
Dutch maechgeli). Mcegbot is however the form we actually find, though in a limited 
signification. 



ENGLAND 211 

The word mtzgbot occurs twice more in the Anglo-Saxon 
laws 1 , but there is nothing in either passage to indicate whether 
it means compensation to the spiritual or to the carnal kin. In 
any case, however, it is clear from the context that it only refers 
to compensation to the connections of the slain man. 

There is no trace of oath-helping kinsmen in Ine's law, in 
fact the existence of such an institution seems to be precluded, 
at any rate in slaying-cases, by the clause which makes the 
oath of a nobleman essential in every oath of compurgation for 
manslaughter. 

Thus, but for the very doubtful word mceggieldan, there is no 
evidence in Ine's laws to show that the liability of the slayer's 
kindred was other than secondary, as in the Kentish laws. 
Incidentally, the use of the masculine pronoun in the 3rd person 
singular seems to imply that the slayer was expected to meet 
his liability alone. Thus, in c. 35, we read that if the slayer of 
a thief conceals his deed, " he shall pay wergild for him " (Sonne 
forgylde he hine}. And in c. 54, I, if the man accused of 
slaying is found guilty, and pays the wergild, " then fa may 
pay, in the place of each hundred (scillings) of the wergild, a 
slave and a byrnie and a sword, if he needs to " (through lack 
of cash 2 ). If the kindred had been concerned the sum would 
probably be made up differently, and the use of he for ' they ' 
would at least require explanation. 

We must bear this use of the 3rd person singular in mind 
when we approach c. 27 of Alfred's laws, which runs as follows : 

" If a man, kinless as regards his paternal kinsmen, fights and slays a 
man, and yet has maternal kinsmen, let these pay a third part of the wergild, 
a third part the %egildan : for the third part let him flee. If he have no 
maternal kinsmen (either), let the gegildan pay half, for half let him flee." 

The passage is usually assumed to show a primary responsi- 
bility of the slayer's kinsmen ; and it is certainly conceivable 
that it actually does so. But in that case the wording is, to say 
the least, remarkable. The passage does not say " the third 



1 jEthelred, vni. 3 (in one MS. only), also Cn. I. i, 5, where however it is a 
repetition of the passage in ^Ethelred. 

2 " Gif hine mon gilt, J>onne mot he gesellan on |ara hyndenna gehwelcere 
monnan 7 byrnan 7 sweord on j^aet wergild, gif he "Syrfe." 

142 



212 ENGLAND 

part let him pay," but instead it assumes the outlawry of the 
slayer. Yet Ine's laws, and passages in Alfred's own laws, 
forbid us to suppose that every slayer was invariably outlawed 
and that in normal cases the slayer paid nothing and the kindred 
paid all. 

Thus in c. 19, the man who lends a weapon for homicidal purposes can 
pay wergild jointly with the slayer, or pay a third of it by himself. So also 
in c. 29 : if a band of men commit manslaughter, let him pay the wergild 
and the fine who admits the deed ; if the supposed slayer denies the deed 
on oath, let them all pay the wergild together. 

We cannot suppose that these persons both pay and are 
outlawed. Is not the real parallel to be sought in the Kentish 
laws, where the slayer pays the whole wergild, but if he leaves 
the country (of lande gewite\>}, his kinsmen are liable for half 
the sum ? We have several times had occasion to observe in 
the course of this work that the escape of the slayer involves 
his kindred in greater pecuniary liabilities than would otherwise 
be the case 1 . Both in Norwegian and Danish laws the kindred 
are declared to have no wergild liability unless the slayer escapes, 
but if he succeeds in this, they are in Norway liable for half the 
sum, and in Denmark for the whole. The ordinance of King 
Valdemar II. of Denmark furnishes an even closer parallel to 
our text. It dates from 1204: 

" If a man slays another man, let him compensate entirely out of his own 
property, unless another kinsman will in his kindliness contribute somewhat 
thereto.... If he does not offer compensation at the three (subsequent) Things, 
let him be outlawed and let him flee from the kingdom.... After he has fled, 
let his next kinsman on his father's side, and another on his mother's side... 
pay two parts (of the wergild) and take two parts of the truce, and let him 
flee with the third part*." 

It is thus unsafe to assume that the Anglo-Saxon passage 
means anything more than that the kindred become liable for 
part of the wergild (in normal cases for two-thirds) if the slayer 
is outlawed or has fled. But the slayer can only be outlawed if, 
presumably owing to lack of property, he has not paid the wergild 
himself. Incidentally we glean that whether a man has kinsmen 
or not, he is thought of as belonging to some kind of society 



1 Cp. p. 206, note i, supra. 2 p. 8a, supra. 



ENGLAND 213 

whose members are responsible for one another, but where the 
bond is not that of blood. 

The next clause, c. 28, deals with the destination of the 
wergild of a kinless man if such should be slain : half is to go 
to the king, half to the gegildan. With regard to the receipt of 
wergild where there were kinsmen, we gather that it was at any 
rate not limited to heirs only : if a man slays the child of an 
escaped nun, let him pay the share due to the maternal relatives 
to the king, but let the paternal kinsmen receive the share due 
to them (c. 8, 3). 

The part played by kinsmen in other connections must not 
be neglected, though there is nothing to lead us to suppose that 
the ' kinsmen ' referred to are any others than the immediate 
family. 

C. i, 2. A pledge-breaker while in prison is to be fed by his kinsmen 
if he himself has no means of subsistence. As so often in the Anglo-Saxon 
laws, the possibility of his being without kinsmen is taken into account. 

C. 42, i. If a man is beleaguered by an enemy seeking rightful vengeance, 
and yields and gives up his weapons, he can be kept within for 30 nights, 
but his whereabouts and position must be announced to his relatives and 
friends (presumably in order that they may treat with the avenger). Similarly 
if he has sought sanctuary and has given up his weapons ( 2). If under 
such circumstances the man is slain by his enemy, the latter shall pay 
wergild, and has ' forfeited his own kinsman ' i.e. has lost right to wergild 
for the kinsman whom he thus avenged ( 4). 

We see here some traces of greatly restricted blood-feuds, 
but we can hardly judge of their importance while we are in 
entire ignorance of the numbers of kinsmen who join in the 
negotiations. 

It is perhaps a sign of the times that it is expressly stated 
that a man may fight on behalf of his own kinsman should the 
latter be unjustly accused unless it be against his own lord 1 . 
A good many of Alfred's laws concern the relation between 
lord and man: thus a man may fight for his lord without 
involving himself in feud (42, 5): treachery to the lord is 
punishable by death (Introd. 49, 7). But more remarkable 
is the indication that the lord pays for the misdeeds of his 



1 Cp. 42, 6, the story of Cynewulf and Cyneheard, infra. 



214 ENGLAND 

' man ' ; a man leaving a district in order to seek a lord must 
notify the ealdorman ; if after he has changed his lord it appears 
that he had committed a crime while with the previous one, " let 
him who has now taken him as man compensate for it " (37, 2). 

As in Ine's laws, there is no mention of oath-helpers of the 
kindred. 

The treaty of Alfred and Guthrum yields, as might be 
expected, no information regarding the kindreds, and we learn 
no more about the duties and privileges of kinship until we 
come to Eadweard's law promulgated at Exeter (924-5). Here 
(II. 6) as indicated in Ine, 24, the kinsmen can forsake a man 
guilty of theft, and refuse to pay compensation for him, so that 
he falls into slavery, in which case they have no claim to wergild 
if he is slain 1 . 

With ^Ethelstan's laws we have reached the period when 
Dane and Anglo-Saxon had settled down in peace. It is 
supposed that Danish administrative ideas had already begun 
to influence Anglo-Saxon kings by Alfred's time 2 . Among the 
1 duces ' or ' ministri ' whose names are attached at the foot of 
^Ethelstan's charters not less than 13 bear Scandinavian names 3 , 
and it is impossible to suppose that these members of the king's 
Council had no influence in legislation. When therefore we 
find for the first time in Anglo-Saxon law that the relatives 
stand surety for a kinsman convicted of theft (il. I, 3, 4) or 
homicidal witchcraft (6) (though they can give him up to justice 
if he commits a second offence) ; that the m<zg% is to find a lord 
for the lordless man 4 (n. 2); that the 'kinsmen' deliver the 
defaulting member of their family from prison by payment of 
a fine (6, i); that anyone taking in a kinsman from another 



1 Compare with this Ditmarschen: the kinsmen are forced, up to 1539, to pay 
compensation for goods stolen by a member of their kindred (p. 129, supra). 

2 Steenstrup, Danelag, pp. 76 f. : also Schmid, p. 614, s.v. hundred. 
8 Chad wick, Studies in A. S. Inst. p. 186. 

4 But cp. Pollock and Maitland, pp. 241-2: "We must resist the temptation to 
speak of the mreg'S as if it were a kind of corporation..., when the 'kindred' of a 
lordless man is ordered to find him a lord, we need not think of this as a command 
addressed to corporations, or even to permanently organized groups of men : it may 
well be addressed to each and all of those persons who would be entitled to share the 
wergild of this lordless man." 



ENGLAND 215 

district must either deliver him to justice, if he is found to 
be a law-breaker, or pay compensation for him (c. 8) ; that 
12 kinsmen go bail for the appearance of a peasant under 
suspicion (in. 7, 2) 1 all these new features must strike us 
as an administrative novelty, just as the orderly division of the 
country into hundreds appears to be an administrative novelty. 
Both are no doubt to be put down to the same source. Perhaps 
it is not fanciful to attribute the greatly increased frequency of 
the word m&gft, where the older laws usually had mcegas or 
occasionally m&gburh, to the constant necessity for translating 
the Danish &tt or kyn*. It is true that very soon we find no 
more trace of the kindreds among the Danes than among the 
Anglo-Saxons, but there can be no doubt that men coming 
straight from a country where the kindred-system permeated 
society would at first expect all the old regulations and sanctions 
of kindred to hold good and to be effective in their new society. 

^Ethelstan's laws also contain an ordinance about clearing 
the name of a man slain as a thief : three relatives, two of the 
paternal and one of the maternal kindred, shall swear that they 
know of no theft committed by their kinsman. The slayer is to 
appear with 1 1 others, for a counter-oath, but it is not stated 
that these also shall be kinsmen 3 ; and indeed there would be 
no point in such a provision. 

There are two further passages of interest in ./Ethelstan's 
laws, and as they are somewhat similar we will consider them to- 
gether. The first is from the Kentish ordinances (ill.) from which 
we have already quoted, and is repeated in IV. (the Concilium 
Thunresfeldense), while what is usually taken to be a reference 
to it occurs in v. The first passage runs as follows (in. 6, 
practically repeated in IV. 3) : " And if any man be so rich or 
be of so great a parentela that he cannot be punished, and if he 
will not refrain from the same (offence) he is to be removed 
into another part of the kingdom." 

1 It is doubtful whether these provisions are more than a rough draft of no 
legislative force : Mih. v. repeated most of the clauses. It only exists in the Lat. 

8 I think I am right in saying that mezgS, in the sense of kindred, only occurs once 
in all the chapters of earlier law (Ine, 76, i) ; magburh once in Ine, 74, i, and 
once in Alfred, 41. 

3 ^Ethelstan n. n. Cp. v. i, 5. 



2l6 ENGLAND 

v. Prol. i seems to explain this further : " Now I have decided with the 
councillors who were with me at Christmas in Exeter, that those [disturbers 
of the peace] be ready, themselves with wife and movable property and 
everything, to fare whither I will unless they will hereafter refrain (from 
misdeeds) in such fashion, that they never afterwards come into the land 
(neighbourhood)." 

All these ordinances seem to be aimed at certain definite 
malefactors who are defying the king's power. They can be 
supported either by wealth or by numerous or powerful kins- 
men, probably by both, but we need not at once decide that 
a ' kindred ' is banding itself together against the king, especially 
as we note that it is only the offender and his wife who are 
banished 1 . 

We now come to what is perhaps the most overworked 
passage in the Anglo-Saxon laws. It is in the Ordinances of 
^Ethelstan for London. The Londoners declare (ythelstan vi. 
8, 2): 

"And if it should happen that any m<z%$ should be so powerful and so 
large, whether in the land (London territory?) or out of it, whether it be 
12-hynde or 2-hynde, that it refuses us our right and steps in to protect the 
thief, that we ride thither in full force" etc. 

This is the locus classicus for those who wish to prove the 
solidarity of the kindred in England. Yet is it not almost 
impossible to suppose that ' kindreds ' able to resist the armed 
forces of London could have existed in England and yet left no 
other traces of themselves than this solitary passage, no reference 
in repressive ordinances, or in charters? If we accept mcegft as 
meaning ' kindred ' in this sense, we shall have to suppose a far 
greater solidarity of the kin in England than anywhere else, 
for the Teutonic kindred has no local habitation to enable 
its enemies to ride out ' thither.' It seems to be forgotten that 
the Anglo-Saxon mceg^ has to do duty for 'family' (in the 
modern sense of the word), ' lineage/ ' house,' as well as for 
'kindred 2 ,' just as magas alternates with ieldran for 'ancestors,' 

1 This is quite definitely stated ; and we have not the least reason to include the 
rest of the kindred. Their inclusion would most certainly be expressly stated if it 
was intended : the paragraph carefully specifies the wife and the movable property 
and 'everything.' 

* Anglo-Saxon also has the words cynn, sibb, but makes very little use of them. 
It is significant that outside the glossaries, Anglo-Saxon has extremely few words for 






ENGLAND 

and also signifies 'descendants.' As a matter of fact we have 
no authority whatever, save the doubtful appeal to Continental 
analogies, for translating m&g$ as ' kindred ' rather than as 
'family.' In the Danish and North German laws there are 
plenty of passages which force us to translate kjjn, slachte, etc. 
as ' kindred ' rather than as ' family,' but in England no passage, 
in the laws or out of them, gives the slightest indication of the 
limits of the mcegft 1 ; and there is no passage which would not 
make equally good (or better) sense if the word were translated 
' family.' The only members of the mcegft actually mentioned 
in the A.-S. laws are parents, children (brother and sister) and 
father's brother 2 . There is another feature of the Anglo-Saxon 
laws which should warn us of the danger of using the word 
' kindred ' with too great certainty. The frequency with which 
the laws consider the case of the kinless individual has hardly 
received the attention it deserves. The wergild clauses of Ine 
and Alfred, providing for the case of a man without maternal 
or paternal kinsmen, might be set aside on the hypothesis that 
they deal with an individual of serf ancestry on one side or 
both, but we cannot explain other cases in this manner for 
instance the case of the man in prison (Alfred I, 3) where 
provision is made for the event of his having no kinsmen, or 
^Ethelred viu. 22, or Cnut II. 35. In most Continental and 

relationships, and never attempts, in the charters, to describe a more distant kinsman 
than "nephew's child" etc. Of the division of the kindred into four and eight 
branches, characteristic of Low German laws, there are only the faintest linguistic 
traces (cneow, etc.). These divisions are no longer groups of persons, but only a 
way of reckoning relationship (Bateson, Borough Customs, I. 274). 

It is true that certain relatives, "inside the knee," are grouped together in 
the fragment Be wergilde (see below, p. 224), but as a matter of fact the father's 
brother, there classed as "inside the knee," cannot really be reckoned as inside it: 
he is obviously in the 'first knee' with other uncles, and with grandparents and 
grandchildren. ' Knee ' is used in the ungermanic sense of ' generation ' in the 
A.-S. poem Daniel, and in JElfric, Homilies, n. 190; so also apparently in William of 
Malmesbury, I. 84: "Offa quinto genu Pendae abnepos": see Liebermann, n. 2, s.v. 
Sippe \ia. 

1 ^thelred vi. 12 (Cnut I. 7) merely gives the limits of affinity from the 
ecclesiastical point of view. 

3 It is doubtless the feeling that 'kindred' implies more than we have any right 
to assume which induces Bosworth-Toller to suggest the translation ' a collection of 
magas,' ' kinsmen ' for 



2l8 ENGLAND 

Scandinavian laws we find clauses throwing responsibility on 
to more distant kinsmen in the absence of nearer relatives, but 
the assumption that a man is likely to have no ' kindred ' is not 
made in any other laws unless in the Ribuarian. The most likely 
explanation of this phenomenon in England is that the mceg^> 
was of very limited extent. It is easily conceivable that a man 
may be without quite near living relatives, but it must be ex- 
ceedingly rare for a man not to possess fourth, third or second 
cousins 1 . If, however, the mceg^ did not include these more 
distant relatives, a man could be called mcegleas who merely did 
not happen to possess any relative within a narrow circle of 
kinship. This interpretation of these otherwise unexplained 
clauses must necessarily be hypothetical, but corroborative 
evidence is afforded by the absence of all regulations, so 
common in other laws, throwing the responsibility on to more 
distant kinsmen in the case of the absence of nearer ones. 

But to return to the m(Bg^> in the London passage. There is 
no more need to interpret the word in this case as ' kindred ' 
than there is to take 'an attack by the Sturlungs' in an 
Icelandic Saga, to mean more than that the force was headed 
by one or two ' Sturlungs ' and was composed of their followers. 
We shall probably be nearer the mark if we translate m<zg<5 as 
' house ' or ' family ' (with ' followers ' understood). 

There is one more point of interest in the ordinances for 
London. A man found guilty (by ordeal) of theft shall be put 
to death, ' unless the kinsmen and the lord ' redeem him by 
paying his wergild (as a fine) and full compensation, and further 
stand surety that he will refrain from every misdeed in future 
(VI. i, 4). The inclusion of the lord is worth notice. But since 
there is no compulsion on the kinsfolk to come forward, we 
cannot regard this passage as evidence of strong kinship- 
solidarity, since no more is asked of the kindred than relatives 
of to-day would be willing to do to save a kinsman from a 
shameful death. 

Eadmund's secular laws mark a notable advance in one 



1 Liebermann, regarding the nueg^ as a full Sippc, observes in this connection : 
"Dass jemandem nietnand von der einen Seite mehr lebte, konnte nur Ausnahme 
sein" (il. i, s.v. Sippe 8). 



ENGLAND 2 19 

respect: private warfare between families, as a result of a slaying, 
is to be stamped out, and the slayer alone is to bear the feud, 
if feud there is to be. 

II. i. " If henceforth anyone kills any man, let him himself bear the feud, 
jnless with the help of friends he pays full wergild within 12 months, 
vhatever the birth (of the slain man," i.e. however high the wergild be). 

It must be remembered that a slayer is not involved in a 
feud unless he cannot or will not pay wergild ; and if he can 
pay wergild there is no feud. So here we must assume that the 
slayer has not been able to produce the sum out of his own 
pocket, and that his kinsmen have been unable or unwilling to 
help him. That even this secondary liability of the kinsmen is 
purely voluntary is seen from the next clause : 

i. " If the magft forsakes him, and will not pay for him, then I will, 
that all the mcegft be without feud, save the actual delinquent, if they give 
him thereafter neither food nor protection. 

2. If however thereafter any one of his kinsmen shelter him, then let 
him be liable to the king for all that he possesses, and bear the feud with the 
mag's (of the slain), for they (the kinsmen) had before forsaken the slayer. 

3. If however one of the other mag takes vengeance on any other 
man than the actual delinquent, let him be outlaw to the king and to all his 
(the king's) friends, and lose all that he possesses." 

In 4 the king adds that he will have no shedder of blood 
taking refuge in his court, until he has submitted to ecclesiastical 
penance and has taken upon himself, as against the m&g^ 1 (of 
the slain), the compensation demanded by them (?). 

C. 7 deals at length with the formalities of reconciliation 
between two kindreds, and shows undoubted Scandinavian 
influence in its wording, as well as probably in the ideas 
expressed : 

" Wise men (witan} shall compose 2 feuds ; first, according to folk-right, 
the slayer shall pledge himself to his representative (forespeca) by handsel 3 , 
and this representative to the kinsmen (of the slain) that the slayer will com- 
pensate the m<zg%. i. Then it is fitting that (the injured m&g$) should 
pledge themselves by handsel to the slayer's representative that the slayer may 



1 So text B : " wiiS Sa maegSe gebet on bote befangen " a difficult reading. H. 
has " wi8 )>a segfter gebet" etc.; Ld. "ftaem msegSe gebete"; B. " 8am seg&e." 
Quadripartitus omits the whole clause. 

a sedan for ' sehtan,' Scand. satta. 3 on hand syllan. 



220 ENGLAND 

approach in truce 1 and pledge himself to the wergild. 2. After he has 
pledged himself to this, then let him find surety therefor. 3. When this is 
done, then the king's mund (protection, i.e. peace) should be established : 21 
nights from that day let healsfang be paid, 21 nights later manbot (fine to 
the lord), 21 nights later the first instalment of the wergild." 

We note sectan, from the Scandinavian scetta, and the use of 
the Scandinavian word gri, actually in its right meaning of 
truce, and not in the derivative meanings which it eventually 
obtained in Anglo-Saxon ; and we are thus led to look for other 
traces of Scandinavian influence, but unfortunately we know so 
little of English procedure on such occasions that it is difficult 
to state categorically what is and what is not Anglo-Saxon. 
We hear a great deal of the composing of quarrels by arbitrators 
in Norwegian laws and in Icelandic sagas : we have never heard 
of it before in Anglo-Saxon records, but that may be due to 
their paucity 2 . Pledging by hand-clasp is a very definite feature 
of Scandinavian custom 3 , and the English noun handsel is 
definitely a Scandinavian loan-word 4 . We cannot be certain 
that the Anglo-Saxons had not the same custom, but it is at 
least curious, in that case, that the only references to it in the 
post-Conquest Borough Customs are both in towns within the 
Danelaw 6 . 

We can hardly help remembering that Oda, Archbishop of 
Canterbury from 942 onwards, was of pure Scandinavian birth. 
We know that the reconciliation between two kindreds was of 
the nature of a solemn ritual in Denmark right up to the 
1 7th century; in England such reconciliations have left only 
the faintest traces, in strong contrast even to North French 
custom. Are we not justified in supposing that the Danish 



1 grift (Scand.). 

a With regard to this passage, Steenstrup (Dantlag, p. 300) says: "Man kan 
ikke haevde, at denne Rsekke Regel om Wergilds Udredelsesmaade ikke er angelsaksisk, 
thi dertil mangier os fra engelsk side alle Hjaelpemidler, men vi kunne fastslaa, at 
Reglerne i h$j grad ligne de nordiske Love og at mange enkelte Udtryk ere laante fra 
Norden." 

8 For handclasp in Norway, cp. Appendix II. No. i ; for Iceland see Sagas 
passim. 

4 Skeat, Etym. Diet. s.v. 

8 Lynn (1388) and Grimsby (1259): Bateson, Borough Customs, n. 171-1 (note) 
and 182. 



ENGLAND 221 

ritual of reconciliation, as practised by the Danes in England, 
would have had a considerable influence on native Anglo-Saxon 
practice ; and is not this the most probable explanation of the 
Scandinavian features in the procedure just quoted ? It is to 
say the least not usual to borrow foreign words to describe an 
entirely indigenous proceeding. But more of this later. 

Eadgar's law contains nothing germane to the object of our 
search, and we pass on to the voluminous legislation of ^Ethelred. 
There is an obscure reference to the ' nearest relatives ' in the 
Treaty with Olaf (c. 6), which we can safely neglect. In the 
law entitled Be cyricgrifte (vni. ^Ethelred, 1014), we find the 
sanctuary-fugitive paying wergild to Church and King ' as well 
as mcegbot and manbot' (c. 3) 1 . Whether mczgbot here means 
payment to the godfather, as in the earlier passage (Ine, c. 76), 
cannot be definitely decided, but our knowledge of ^Ethelred's 
ecclesiastical sympathies will incline us to that view. 

We can now devote ourselves to the case of the clerics of 
the various grades, the only class about whom ^Ethelred troubles 
to issue wergild-ordinances. Before examining these clauses in 
detail it will be well to recall that in Alfred 21 a priest is not 
expected to pay wergild if he slays a man (in this passage his 
lord may pay it for him). This is consistent with Continental 
practice 2 . 

C. 22. " If a friendless altar-servant is accused, who has no 
oath-helpers," he is to clear himself by a suitable ordeal. As there 
has as yet been no reference to oath-helpers of the kindred in 
the A.-S. laws, we need not suppose that the ' friendless ' man 
means merely ' kinless 3 ,' and we can pass on to the next clause. 

23. " And if a cleric is charged with manslaughter, and it is said that he 



1 If magbot does refer to kin- compensation, it is worth while noting that it is only 
used for the recipients' kin, unlike the Dan. settarbot, the Dutch maechzoen, etc. 

2 Jutish Law : 26. " Clerks and women do not pay compensation, and they do 
not take compensation, however near they are in birth, because they may not take 
vengeance on any man nor any man on them." A propos of this ordinance it might 
be remarked that A.-S. law never considers the question whether clerics should pay 
or receive a quota of wergild for a kinsman's act or death. 

a Liebermann, li. i (s.v. Sippe i c), " Den Gegensatz zum freondleas bildet wer 
geferan [comrades] hat, li. Cnut 35, i ; beides umfasst die Sippe mil, doch vielleicht 
auch andere Genossenschaft daneben." 



222 ENGLAND 

was the actual culprit or incited others thereto, let him swear himself clear 
with his kinsmen, those who have to bear feud with him (P) 1 , or compensate." 

If we lose sight of the fact that a priest cannot bear feud or 
pay wergild, we shall of course jump to the conclusion that this 
passage shows participation of the kindred in all cases ; in spite 
of Eadmund's express limitation of feuds to the actual slayer. 
But the true explanation is surely that, as a cleric cannot pay 
wergild for himself, his kinsmen must do it for him or suffer the 
feud. Whether more than father and brothers were implicated 
it would be hard to say ; but in any case this passage gives no 
support to the idea that the kinsmen of laymen are liable to 
contribute towards the wergild or suffer feud. Clause 24 provides 
for the case of the cleric's kinlessness. Cap. 25 gives the 
same immunity to the monk, but adds that in entering the 
order he has definitely withdrawn from his maglagu, so we may 
assume that his kinsmen do not have to pay either. 

We must now consider the laws of Cnut. These differ from 
the preceding laws, since he does not content himself with 
issuing new ordinances, but makes an attempt at codifying the 
whole body of Anglo-Saxon law. With the repetitions of old 
law we shall not concern ourselves, but we may note in passing 
that while it is clear that everyone must have a bork, some one 
to stand surety for him (II. 20, 20 a), there is no repetition of 
Eadmund's clauses about the mceg acting in that capacity. 
Clause 35 speaks of "a friendless man and one come from 
afar" being "so oppressed by friendlessness that he has no 
one to stand surety for him," but it is surely rash to translate 
freondleas as sippenloser*. 

The only addition to previous wergild clauses is that of the 
slayer of an altar-servant : he is an outlaw unless he does much 
penance and compensates the magK (II. 39). 

The laws of Cnut are the last of the long series of pre- 
Norman legislation. But there are various stray documents, 
generally undated and even undateable, of which several can 



1 " |>e faehfte mot on mid beran trttfSe forebetan." 

2 Liebermann's tr. 



ENGLAND 223 

have had no legislative authority, but which are yet of importance 
in determining the customs of pre-Norman times. To these we 
must now turn. Those which bear some relation to the subject 
of our inquiry are : Norbleoda lagu, Norfihymbra Preosta lagu, 
and a fragment entitled Be wergilde. 

The Norbleoda lagu is certainly not of native English origin, 
and its provisions do not concern us here, save the first, which 
enacts that wergild for a king is paid to his kinsmen, or as one 
MS. 1 has it, perhaps somewhat tautologically, it belongs to the 
mcegft of the king's cyn or royal family. 

The Northumbrian Priests' Law, from York, attributed by 
Liebermann to the nth century, is of course equally Scandi- 
navian, but it is of interest to us as containing a clear reference, 
the first we have so far come across, to oath-helpers of the 
kindred : 

.51. " If a King's thane wishes to clear himself [of the accusation of 
heathendom] let 12 [oath-helpers] be appointed for him ; and let him choose 
12 from among his kinsmen [or, let 12 be chosen from among his kinsmen ?] 
and 12 unrelated (? waller wente)" 

It has been suggested that waller wente is a corrupted form 
of Scand. *valin vttni, for valinkunn vitni*, in any case it is 
frankly admitted that the word is of Scandinavian origin, so 
that this passage does not help us to find oath-helpers of the 
kindred among the Anglo-Saxons. It is possibly significant 
that these oath-helpers of the kindred are only mentioned in 
the case of king's thanes, i.e. of the Danish conquering class. 
For other grades of society it is merely stated that the oath- 
helpers are to be the accused's peers (gelicati). 

We can now turn to the fragment Be wergilde. It is found 
in the MSS. as an appendix to Eadweard and Guthrum's Law 
(which probably dates from before the middle of the roth century). 
Usually, however, the fragment is not considered to have any 
connection with that document. Liebermann dates it between 
944 and c. 1060. It begins with what seems a somewhat 



1 Ld. 

2 Cp. Liebermann, p. 383, note ft- Steenstrup points out the resemblance to 
the Swedish 0stg^talag, Va|>amaal B. c. 13, 5. 



224 ENGLAND 

superfluous resume of the elementary facts of wergild, known 
from Ine's day onwards, thus : 

I. The wergild of a I2oo-man is 1200 sailings. 

1. i. The wergild of a 2oo-man is 200 scillings. 

2. When a man is slain, let him be paid for according to his birth. 
After these commonplaces, it continues : 

3. And it is right that the slayer, as soon as he has pledged himself to 
wergild, should find wergild-surety such as is right for it, that is : for a 
1 200- wergild twelve men are right for the wergild-surety : 8 of the paternal 
mcegft and 4 of the maternal mcegft. 

4. When this is done, then the king's mund (protection, i.e. peace) is 
established ; that is, that all they of either magS jointly (lit. with joint hand) 
swear on one weapon to the mediator that the king's mund shall stand. 

4. i. After 21 nights from this day let 120 sc. be paid as healsfang in 
the case of the 1200 wergild. 

5. Healsfang belongs to children, brothers and father's brother ; that 
money is not for any kinsmen but those that are within the ' knee.' 

6. Twenty-one nights after the day on which healsfang is paid, let 
manbofbt paid, 21 nights later fyhtwite, 21 nights later the first instalment 
of wergild, and so on, until it is fully paid within the term settled by the 
arbitrators. 

6, i. Thereafter, if one wishes to receive full friendship [from the 
injured party] one can proceed ' with love ' [Schmid : " mit Liebe vorschrei- 
ten"], (or: one can attain that by a private reconciliation, Liebermann: "das 
erlangen durch private Versohnung "). 

There is a close similarity between these regulations and 
those of Eadmund which we have already discussed. The 
additional information they afford can be summed up thus : 

(1) The nature of the wergild-surety 8 paternal and 4 
maternal kinsmen. 

(2) The nature of the oath : sworn with ' joint hand ' on 
one weapon to the mediating judge. 

(3) The specification of the persons who can receive 
healsfang. 

(4) The insertion of the fihtwite before the first instalment 
of the wergild. 

(5) The fact that a completer reconciliation can be made 
'mid lufe.' 



ENGLAND 225 

We have already seen that Eadmund's wergild regulations 
showed Scandinavian influence, and certain of the points just 
enumerated are equally open to that suspicion : 

(1) The oath of 12 kinsmen, in the pre-Conquest laws, 
appears only here, in the indubitably Scandinavian Northumbrian 
Priests' Law 1 , and among the new regulations of ^Ethelstan, 
where 12 kinsmen go bail for the appearance of a delinquent. 

(2) A trygde-ed, or oath of peace of 12 kinsmen after a 
slaying, is a feature of the Danish laws, and persists in Danish 
custom as late as the i6th century 2 . The expression gemanum 
handum* exactly corresponds to the ' samblet Haand ' of Danish 
custom: thus a Danish wergild case of 1549 turns on whether 
the kinsmen did or did not swear (to pay wergild) ' met en 
samblitt Handtt 4 ' or whether each swore for himself. These 
' collected hands ' are moreover placed on one weapon which is 
known to be a Scandinavian form of oath, and which we do not 
meet again in Anglo-Saxon custom 5 . Perhaps it is worth while 
to quote from a case recorded at Helsing^r in 1567 : 

" Then in God's name came forward the aforesaid Morthen 
Perssen, acting on his own behalf and for the said son of his 
deceased brother and for other common kinsmen on the paternal 
and maternal side who were not present, (and) Jens Krogermager, 
Frands Perssen, Christoffer Jorgenssen and Lass Kieldssen (came 
forward also)... and all together now this day here at the Thing, 
before God and the people, with mouth and hand, all holding 
(the) sword, gave and promised... peace to the aforesaid Michill 
Lauessen...and all their common kindred 6 ." 



1 Here again it is only actually mentioned in the case of nobles. 

2 See supra, p. 92. 

3 The expression gemanum handum occurs in Alf. 31, i : " if a band of men slay 
a man, let t'uem all pay wergild gemaenum hondum jointly." This however does 
not refer to taking an oath 'with joint hand on one weapon.' 

4 Cp. Kolderup- Rosen vinge, Gl. d. D. I. No. 56. 

6 An oath on arms occurs in the Preston custumal, i.e. within the Danelaw. 
Bateson, Borough Customs, I. 30. 

6 From P. V. Jacobsen's Uddrag etc. , Ny Kgl. Sam/. No. 697 f. 410. I am 
indebted to an unpublished treatise by Prof. Poul Jorgensen for references to similar 
oaths in Naslveds Tingbjgcr, 15 Mar. 1602, and 12 Sept. 1608. 



226 ENGLAND 

(3) The relatives who are to receive Iiealsfang, incontestably 
an English institution, are carefully specified. 

(4) There is very strong reason for supposing that the term 
fyht-wite is only used in the Danelaw. No doubt there was a 
somewhat similar fine in Wessex (cp. Ine 6, 4), but this appears 
to be called mundbryce. The significance of two passages in 
Cnut's laws seems to have escaped attention. In the first, in 
defining the dues to which the king lays claim, Cnut says : 
[II. 1 2] "These are the dues, which the king has over all folk 
in Wessex : that is, mundbryce and hamsocne, forstal and fyrd- 
wite..." etc., and II. 14 he claims the same for Mercia. Then he 
continues, (II. 15) "And in the Danelaw he has fyhtwite and 
fyrdwite, griftbryce and hamsocne " 

The term does not appear until Eadmund's time, and it is 
doubtful from his reference whether it was then claimed by the 
king, for he seems to equate it with manbot, which fell to the 
lord : " And I will not, that any fyhtewite or manbot be forgiven " 
(II. Edm. 3). 

(5) The ' full friendship ' is difficult of explanation as may 
be gathered from the lack of unanimity in the versions of Schmid 
and Liebermann 1 unless recourse is had to Danish custom, 
when it can easily be explained as a reference to the gjfirsmn 
or ' additional gift ' which we have seen in our study of Danish 
wergilds to be a varying sum or an object of value 2 given to the 
kindred of the slain by private arrangement between the parties 3 , 
in addition to the wergild. This extra gift has many names in 
mediaeval Danish. We find it called hfaeskhed, ' courtesy,' and 
other terms which are less easy of explanation, such as Feyring, 
Flining, Wandel, etc. In Low German deeds from Schleswig 
it is sometimes translated Minde, ' love, friendliness,' which can 

1 Liebermann's translation shows that he considers this phrase to be a reference 
to gjjrsurn, for his version is almost a translation of the editor's note to gj^rsum in 
the Danish laws, stating that gjfrsum is given ' by private agreement.' Steenstrup 
regards the passage in the same light : Danelag, p. 300. 

2 Among nobles often a jewel, cp. Bilde-Hak orfejde, supra, p. 89, 'eth clenodie,' 
and the St0ggy-Mogenssen orfejde, Appendix II. No. 4, 'tuende Klenody.' Among 
non-nobles it was often a piece of black cloth for mourning [hence its name Lediske, 
Leiden (cloth)]. Cp. Kolderup- Rosen vinge, Gl. d. D. \. 56 (1549). 

8 See supra, p. 89, a jewel to be chosen by 6 kinsmen of either side. 



ENGLAND 22/ 

hardly fail to remind us of the A.-S. midlufe of our passage 1 . In 
1635 acase occurs in which the kinsmen of the slain refuse to accept 
the wergild unless a Mind, 'friendly gift,' is handed over with it 2 . 

Of course it is perfectly possible that all these resemblances 
to Danish custom may be due, not to borrowing, but to a 
common origin. Still, when we count up the resemblances in 
the two sets of wergild regulations, we must admit that though 
the wording, at any rate in the fragment, is Anglo-Saxon, the 
number of Danish features not otherwise found in Anglo-Saxon 
laws is very considerable. And it is obvious that the two 
sets of laws must stand or fall together. In Eadmund's law 
we have the words sectan and griS (the latter in its proper 
Scandinavian meaning), the ' handsel ' of pledges, and the ex- 
pression on hand syllan with the meaning to promise, which 
does not occur till the Danish period 8 . In the fragment we 
have the oath of kinsmen, the trygde-ed with joint hand on one 
weapon, \hefyktwite, and a reference that is hard of explanation 
if it is not to the Danish gjfirsum, the ' Minde ' of later custom. 

We must suppose that the two sets of regulations are 
independent of each other, since each omits something that 
the other inserts. Eadmund has the forespeca, and the Danish 
terms sectan and grift; Be wergilde has fyhtwite and the reference 
to gjfirsum. 

A possible explanation of the fragment's combination of 
Danish and Anglo-Saxon elements would be furnished by the 
hypothesis that the compiler used two sources, of which one 
was the earlier Anglo-Saxon laws ; and that, in points where he 
found no Anglo-Saxon regulations, he drew upon the customary 
law with which he was acquainted, which was of Danelaw origin 
and very likely not committed to writing 4 . It is to be noted in 



1 Schiller and Lubben, Mittelniederdeutsches Worterbuch, s.v. Minne, ' Liebe, 
Huld, Zustimmung,...bes. Giite, gutliches Ubereinkommen, gutliche Bdlegung eines 
Streitpunktes. 

2 Stemann, Schl. Rechts- und Gerichtsverfassung im 17 Jhdt, (Schleswig & 
Flensborg, 1855), p. 67. 

3 Schmid, Glossar, s.v. syllan and hand. 

4 In view of its blending of Scandinavian and Anglo-Saxon custom, it is surely 
possible that this fragment really has some connection with Eadweard and Guthrum's 
Law, to which the MSS. attach it. 

152 



228 ENGLAND 

favour of this theory that every new fact he tells us either has a 
Scandinavian aspect, or else is an explanation of Anglo-Saxon 
terms, healsfang, twelf-hynde and twy-hynde. The last two must 
have had an archaic flavour by the Danish period, and it is 
improbable that they would be employed at that date by an 
Anglo-Saxon 1 . 

The resemblances between the fragment and Eadmund's 
law would be explained by the fact that both have certain 
Scandinavian characteristics grafted on to the original A.-S. 
reconciliation-customs. 

On the other hand it is quite possible that the Danish 
influence observable in both sets of regulations is only indirect, 
i.e. that certain Danish customs concerning slaying-reconciliations 
had found their way also into Wessex, and that these two sources 
do represent Anglo-Saxon custom 2 , but only as it was after the 
Danish invasion. All we would urge is that it is more than 
rash to look upon either or both of them as of purely Anglo- 
Saxon origin. 

The private compilations of laws known as the Lets Willelme 
and the Leges Henrici I. have not, of course, the same value as 
evidence as the actual legislation of the Anglo-Saxon period. 
Of the two, the Anglo-French Lets Willelme is earlier 
(Liebermann 1090 1135), and, its author being perhaps a less 
accomplished jurist, it is perhaps also a more trustworthy 
reflection of Anglo-Saxon laws than the Leges Henrici. Like 
these, however, it contains inconsistencies due to the fact that 
its material is drawn from different sources 3 . It was probably 
composed in Mercia*. 

Unfortunately it tells us almost nothing about wergild. 
What it does tell us is rather surprising : c. 9, " Of the wergild 



1 We may also point out that the raison d'etre of the oath of peace between the 
kindreds has departed with Eadmund's ordinance restricting feuds. But we do not 
lay much stress on this. 

2 For the fragment this explanation is more difficult, as it would hardly account 
for the mid Mfe clause, which is really only explicable as a direct translation from 
Danish. 

8 Cp. Steenstrup, Dane/a/. 

4 See Liebermann's ed. I. p. 492, note a. 



ENGLAND 229 

10 sol. (shillings) shall first be given to the widow and orphans 
as halsfang^ : and the rest the orphans and kinsmen divide 
among themselves." 

The substitution of the widow for the uncle may be considered 
to show a certain weakening of the bonds of kindred. The 
participation of the children in both the halsfang and in the 
rest of the wergild suggests that the latter also is becoming 
gradually restricted to the heirs. 

Whatever the provenance of this passage, whether it be from 
Norman unwritten custom or from Mercian law, its very inde- 
pendence of all the older Anglo-Saxon laws known to us (and 
to the compiler) favours the supposition that it gives an accurate 
picture of the actual working of wergild customs at the time. 
This is emphatically not the case with the Leges Henrici, The 
compiler of this collection must have been an ardent jurist, and 
various clauses indicate that he had all a collector's delight in 
gathering together any passages, from whatever source, that 
could so much as illustrate an Anglo-Saxon ordinance. We 
can believe that provisions from Roman law and even from 
Salic law might come to be valid in Norman England, but it 
is impossible to believe that regulations out of the Ripuarian 
law 3 of the 6th and /th centuries can have had any validity in 
the England of the I2th. These borrowings from Continental 
laws can however usually be recognized 3 : it is more difficult 
to trace to its source a Danish or, say, a Mercian law, since 
there remain for our guidance so few fragments of the former 
and practically nothing of the latter. Still in some instances 
an inference can be drawn with a fair degree of certainty. 
Thus we find yEthelstan's ordinance about clearing the name 
of a man killed as a thief, by means of an oath of one maternal 
and two paternal kinsmen 4 , side by side with the following : 

" If their kinsmen wish to clear those who have been put to death unjustly 
and without trial (sine judicio) it is permitted to them according to ancient 
law to clear them by werelade. If he (the slain man) were of 4 birth, 

1 As a matter of fact it is only the i4th cent. MS. (Pseudo-Ingulf) which has 
halsfang, the more trustworthy MS. Hk. has hamsochne (which must be an error) : 
the Latin translation (of about 1200?) omits the word altogether. 

2 Cp. Leg. Hen. 70, 18. 

* See Liebermann's edition. * II. ^Ethelstan n. Leg. Hen. 74, i. 



230 ENGLAND 

with 12 : let 8 be on the paternal side, 4 on the maternal. If of 14 [more 
probably ^25 '] (birth), with i6 2 ." 

These two passages are mutually exclusive and must be 
from different sources. We can put our finger on the passage 
corresponding to the first of the two (74, 2) in the Wessex laws, 
but the second we have not met before in any Anglo-Saxon 
law. We are thus led to deduce their non-Wessex origin. We 
have already, however, seen reason to suspect that the oath of 
12 kinsmen, when it occurs in England, is of Danish origin; 
and we further note the similarity of the wording of this passage 
to the Northumbrian Priests' Law, c. 51, and to c. 3 of Be 
wergilde, which we hold to be Danish also. The Latin version 
of the latter even gives us the equation i2-hynde = ^25 wergild 8 . 

In view of these resemblances as well as of the differences 
between it and the corresponding Wessex law, it does not seem 
unjustifiable to suppose that while the first passage we quoted, 
with its three kinsmen, represents Anglo-Saxon law, the second, 
with twelve, is from the Danelaw 4 . Certain passages relating 
to homicide can also be attributed to the Danelaw with a fair 
degree of certainty. After repeating an ordinance similar to 
Alfred c. 27, i, regulating the wergild of a slain man who had 
no kindred on the paternal side, the Leges go on to say: "If 
anyone in a similar position (hujus modi) commit homicide, his 
kinsmen pay so much of the wergild as they would receive for 
him, if he were killed. If he have kinsmen on the paternal side 
and not on the maternal, and kills a man, let those related to 
him pay as much as they would receive for his death, that is, 
two parts of his wergild 8 ." 

It is possible that this passage may be intended as a sort of 
paraphrase of Alfred 27, omitting, however, the real point of that 
passage, the outlawry or liability of the slayer. It is quite possible 
that the paternal kinsmen of the slain should receive two-thirds 
of the wergild, and the maternal kinsmen one-third. But if the 

1 Liebermann, p. 591, note . 2 Leg. Hen. 74. 

3 The same as in ^thelred's treaty, II. 5. 

4 Presumably 64, 4 is also due to Scand. influence as far as the oath is concerned : 
"ut qui ex parte patris erunt fracto iuramento, qui ex materne cognacione erunt piano 
se sacramento iuraturos aduertat." We have seen that this oath is not of kinsmen in 
A.-S. law. 5 Leg. Hen. 75, 9. 



ENGLAND 231 

kinsmen of the slayer also pay at this rate, the slayer himself is 
not liable at all, which we have already seen to be contrary to 
Anglo-Saxon law. 

Chapter 76 gives a series of wergild regulations, almost all 
taken from the fragment Be wergilde, though the recipients 
of halsfang are (possibly by a misunderstanding of the A.-S. 
fcederati), declared to be father, son or brother of the slain, or 
in their absence the nearest relative of the father. It agrees, 
however, with Be wergilde in devoting the sum to agnates. 

We note that the whole wergild is paid in 4 instalments. Whereas 
Ine 54, i speaks of a sword, a slave and a byrnie as admissible wergild- 
currency in case of need, the Leges mention sheep and a horse. 

We find the old law, that the ' men ' of a lord could fight for him 
without becoming themselves subject to feud (Alf. 42, 5), but it is greatly 
expanded (88, 9, 9 a). 

Cap. 88, 1 1 quaintly warns persons engaged in feuds that they must keep 
the proportion of 2 : i in their slayings of the paternal and maternal kinsmen 
of their enemy (!), otherwise the kinsmen of the slain can claim a surplus of 
wergild or feud, "tarn in generositate^ quam in propinquiori pertinentia." 
We have not found this cold-blooded reckoning in any of our researches 
into feuds, nor can it be said to be practically feasible, unless perhaps 
among Welsh or Scotch clans. It probably originates in the laborious 
fancy of a jurist. 

Strangely contrasting with this picture of cohesive kindreds, 
cap. 88, 17 observes that "it is better in every wergild that the 
kinsmen of the homicide make peace at the same time rather 
than singly." Individuals making peace separately, as this 
implies, would show a declension of the kindred as great as in 
Iceland. If this represents old Anglo-Saxon custom, and not 
merely the conditions of the I2th century, we were well advised 
to attribute to the Danes the solemn reconciliation and oaths 
' with joint hand.' 

We have already observed that laws are unsatisfactory 
evidence in the matter of kinship-solidarity, and especially in 
wergild-provisions, since they are liable either to preserve 
archaic and obsolete features, sometimes for an incredibly long 
period of time, or to mislead in the other direction, through our 
inability to distinguish statements of customary law from the 

1 Liebermann translates this ' ' Geschlecht im weiteren Sinne. " 



232 ENGLAND 

innovations of kings. It is however probable that the Anglo- 
Saxon laws give on the whole a more correct impression in 
these matters than many of the other laws with which we 
have dealt in the course of this work. They are neither 
composed entirely of statements of custom, nor entirely of 
royal edicts ; and yet we do not find the gross discrepancies 
between the two elements which are so common on the 
Continent. There may be archaic features : there may be 
royal innovations which never became custom, but the picture 
of the position of kinsmen is on the whole remarkably homo- 
geneous. We gather that, in Kent and apparently in Wessex, 
the slayer alone paid wergild to the slain man's relatives, unless 
he had insufficient means, fled, or was outlawed, and we infer 
that the group of recipients would not be very large. In this 
connection we may note that in the Dialogues of Ecgbert 
(732 766) it is asked whether the slayer of a priest is to pay 
the pretium sanguinis to the Church or to the 'near relations 1 ' 
(propinquis). The answer is also significant, for it gives the 
wergild to the Church. Seebohm considers this as evidence 
that the Church has succumbed to tribal custom, but it would 
surely be more correct to say that the Church succumbed to 
the barbaric custom of taking money for a slaying, but set 
aside the claim of the kindred by taking the whole sum. If the 
rulings of Ecgbert are founded on custom, this evidence would go 
to prove that the solidarity of the kindred was as much limited 
in the North, in pre-Danish times, as in Kent or Wessex. 

It would also seem that there were in the earlier period no 
oath-helpers of the kindred (unless the three kinsmen mentioned 
in ^Ethelstan II.. c. 11, can be counted as such). If we reject 
the evidence in favour of a Scandinavian origin for the fragment 
Be wergilde which is difficult we might claim that 12 kinsmen 
of a king's thane who has committed manslaughter act as sureties 
for the payment of wergild in Anglo-Saxon custom 2 ; but even 
so the sphere ol the kindred is very much restricted, for, from 
the time of the earliest laws, ' credible persons ' or ' neighbours ' 
or ' peers ' have ousted the kindred from oaths of compurgation. 

1 So translated by Seebohm, p. 382. The passage is quoted by Schraid, s.v. 
Geistliche. 2 This would be hard to reconcile with Leg. Hen. 88, 17. 



ENGLAND 233 

In post-Conquest Borough Customs 1 compurgation is as favourite 
a method of proof as in any Continental laws, but only twice 
do we find kinsmen called in to act. In London six of them 
swear that a householder was only defending his house from 
an unwelcome guest when he killed an intruder 2 . At Dunwich 
(in the Danelaw) a man accused of murder clears himself with 
twenty-four of his neighbours and kinsmen 3 . This fact is the 
more remarkable because the oath of kinsmen was common in 
Danish law. 

The only trace of a responsibility of the kinsmen for the 
maintenance of pauper relatives is contained in the ordinance 
of Alfred providing that if the imprisoned pledge-breaker has 
no means of subsistence of his own, his kinsmen are to feed 
him, if he has any 4 . 

The question of odal landholding is somewhat complex. 
Alfred's law, c. 41, says that if land is left by charter (book-land) 
with the express proviso that it is not to go out of the kindred 
(m&gburh}, this proviso must be respected, and anyone objecting 
to the alienation of such land must do so in presence of his 
kinsmen. The mention of the ' express proviso ' seems to 
preclude the existence of any odal custom or retrait lignager 
in book-land. On the other hand, a claim of the nearest 
kinsman is suggested in the Ramsey and Ely histories, and is 
definitely provided for in a number of borough customs, not 
only in the Danelaw 5 . But the problem hardly concerns us 
here, for we have already observed (p. 5, supra) that the right 



1 See Bateson, Borough Customs, I. Index of Matters, s.v. compurgation; Ballard, 
British Borough Charters, pp. 137-9. 

2 In the London Libertas of 1133-54, cap. 2; Liebermann, I. p. 673. 
* Ballard, op. cit., p. 139 (1215). 

4 Liebermann (n. 2 s.v. Sippe, 16) deduces a responsibility of the kindred 
towards a needy kinsman from the fact that they are forbidden to give an outlawed 
kinsman food or protection (ll. Eadm. i, 2). But this hardly follows, for the giving 
of food or shelter to the outlaw is only expressly forbidden to kinsmen because they 
are the most likely to commit the offence. If we could reason in the way suggested,, 
should we not have to assume that in Norway and Iceland everyone was bound to 
support a needy person, whether of the kin or not, for we find it expressly stated that 
no one is to give food or shelter to the outlaw ? In any case, it is not the ' kindred ' 
which is here spoken of, but only the individual kinsman (hwilc his maga). 

5 Ballard, p. cxxxiv (table). 



234 ENGLAND 

of pre-emption does not involve cohesion of the kin. It is worth 
while remarking, however, that whereas it exists in Denmark, 
North Germany and France up to the I7th and i8th centuries, 
the sporadic evidences of it in English local customs disappear 
comparatively early. The Anglo-Saxon law of inheritance is 
chiefly remarkable for its testamentary freedom, which in itself 
affords strong evidence for the individual's independence of his 
kindred. 

In what may be called the Danish period, by which I do not 
mean the period of actual invasion, but that of peaceful influence, 
there is a certain amount of evidence, in the laws of ^Ethelstan, 
that more was expected of the kindred, and this we attributed 
to Danish influence. But judging from the fact that Cnut omits 
these regulations in his re-issue of almost all the more important 
Anglo-Saxon laws, it would seem that the kindred had been 
found incapable of meeting the responsibility placed on it, even 
though it was of a kind which might rightly be demanded of a 
mere family. 

We have further observed that in a few fragments of custom 
from the Danelaw the kindred shows itself very slightly more 
cohesive, but there is every reason to hold that this characteristic 
of the Scandinavian settlers was soon lost 1 . 

The real significance of the Anglo-Saxon laws with respect 
to the kindred consists chiefly in its omissions. We must 
emphasize the entire absence of any statement, or even hint, 
as to how far the magft extended, and of any regulations for 
I 1 1 the distribution of wergild among persons more distant than 
' the immediate family. There is also no sign of the usual 
Continental distinction between heir's compensation and kindred- 
compensation. 

Let us now compare these results, gleaned from the laws, 
with such evidence as is afforded by the charters. 

Firstly there is a remarkable paucity of references to the 
meegft. There seem to be no Siihngerichte, as on the Continent, 

1 Cp. Vinogradoff, English Society in the \\th century, p. 447: "Altogether it 
seems clear that tribal ties did not play an important part in those districts of 
England conquered and re-colonized by bands of warriors organized as military 
hosts and voluntary guild associations." 



ENGLAND 235 

nor is there any trace of the forswearing of one member of the 
kindred by all the others, which Eadmund's law restricting feud 
(il. i ) would lead us to expect in England, if the magS had been 
wider than the mere family. 

The chief case in which the word m<zgS occurs is in the 
deed setting forth the terms made between Bishop WerferS 
of Worcester and one EadnoS 1 . A previous bishop had given 
land at Sodbury to EadnoS's ancestor, on condition that it 
should always be inherited by a cleric, or else should lapse to 
the see of Worcester. On the death of the second holder the 
family refused to give it up, though they were all lay, and 
according to the bishop "the mcegS thus bereaved the spirits 
of their forbears of the land, as well as the bishop and church." 
The bishop pleads his cause against the ' kinsmen ' (magas) ; 
and three persons, presumably these same kinsmen, promise to 
give up the land if they cannot find someone in their magft 
to take orders and possess the land. " Then EadnoS, who had 
the land, offered it to all the family, whether anyone would so 
obtain it." No one could be found, and the rest of the tale 
does not concern us. But it will be readily seen that there is 
nothing more in the tale than might happen if land were left on 
such conditions at the present day. Indeed it might probably 
be paralleled in the case of persons of, let us say, the iQth century, 
seeking to keep a living ' in the family.' 

One would expect to find the m<zg& mentioned in wills, but 
this is not the case. Among all the wills which have come 
down to us, I only find one which notes the presence of kinsmen, 
and in this case ten relatives are witnesses to the deed 2 . But 
otherwise the wills are most discouraging to anyone seeking for 
evidence of the obligations of kinship. It is true there is 
only testamentary freedom with regard to 'book-land,' but 
this book-land can be bequeathed to churches without so much 
as a mention of the kinsmen's consent, which was obligatory 
even in France 3 . We even find, as a result of a suit by a son 
against his mother (in itself an illegal action in most Teutonic 

1 Birch, ii. pp. 285 f., Thorpe, p. 166. 

9 Birch in. p. 373. Will of Byrhtric and ^lfswy'5 of Meopham, Kent. 

* References in Brunner, Deutsche Rechtsgesch. 2nd ed. p. 126. 



236 ENGLAND 

countries at this stage), that a mother leaves all her land and 
property away from her son and to a married kinswoman 1 . 

Of wergild we learn nothing, except that a sum described as 
' my wergild ' or ' my two wergilds ' was sometimes bequeathed 
to St Peter 8 or to the church. Incidentally, from the story of 
^Ethelstan of Sunbury, we learn that a man who had to pay 
wergild as a fine for breach of the law usually paid it himself, 
without the help even of a brother*. 

One other point must be noted. In the fragment entitled 
Be wifmannes beweddung the consent of the ' friends ' seems to 
be necessary (c. i), and 'friends' on both sides act as sureties. 
It is usually assumed, and seems probable, that these ' friends ' 
are kinsmen, but in a marriage deed that has come down to 
us no consent of the kinsmen is expressed 4 . 

It is strange that England's great wealth of early charters 
should yield no single reference which could possibly be taken 
as a reference to cohesive kindreds. We are now driven back 
upon the literature, which is also fairly abundant. 

From Beowulf we glean nothing that can serve as evidence 
for kin-solidarity 3 . On the contrary, we find HroSgar, a foreign 
king, paying compensation on behalf of Ecg)>eow for his slaying 
of HeaSolaf, one of the Wylfing dynasty (1. 470 f.). And from 

1 Thorpe, p. 336. 

s Kemble, 235; Birch, II. 195, 6; Thorpe, p. 349. For these references I am 
indebted to Miss Harmer, who considers that ' St Peter ' probably refers to a church 
in England, and not to Rome. Is it not possible that this was done with some idea 
of paying for burial, for which wergild would be a suitable sum as the price of a life ? 
Cp. Kemble, iv. p. 303 : Et ego ^Ernketel uolo quod in pretium septdturac meat et 
animae salutem proueniant aecclesiae Ramesise xv. librae.... 

3 Birch, in. p. 282 (c. 960 962). 

4 Kemble, iv. p. 25 (Wulfric 1023). 

5 The passage, 2887 2889, where the faithful thane warns the cowardly com- 
panions of Beowulf: 

" ...lond-rihtes m&t 

)>aere maeg-burge monna aeghwylc 

{del hweorfan, sytJiSan is'Selingas 

feorran gefricgean fleam eowerne " 

has been translated: "Every man of the kindred shall lose his lond-riht, shall be 
outlawed as soon as the ethelings from a distance shall learn of your flight" (cp. 
Brunner, Deutsche Rcchtsgeschichte, 2nd ed., p. 119), but magburh is usually translated 
in this passage as governed by londrihtes, and signifying ' people, nation,' i.e. the Geats. 






ENGLAND 237 

the passage which describes HroSgar indemnifying with rich 
gifts the companions of Aeschere, who had been slain by Grendel's 
mother (11. 1053 ff.), we can only assume that it was the members 
of the comitatus rather than the kin, who received wergild for 
a warrior slain in his lord's employ, We are reminded of the 
participation of the gegildan in Alfred's laws (p. 211, supra). 

The famous entry in the Anglo-Saxon Chronicle under the 
year 755 reveals an attitude towards the obligations of kinship 
for which it would be difficult to find a parallel on the Continent : 

Cyneheard and his followers surprise Cynewulf, King of the West Saxons, 
and kill him. Cynewulf's companions hurry to the scene, scornfully reject 
Cyneheard's offer of peace, and fight with him until they are all slain but 
one. Next morning the rest of the king's party come up. To them Cyne- 
heard offers 'self-doom' if they will but grant him peace, and he further 
points out to them that kinsmen of theirs are among his followers and will 
not be induced to abandon him. The king's party reply that " no kinsman 
was dearer to them than their lord 1 ," and bid their kinsmen leave Cyneheard 
and depart unharmed before the fray begins. But these latter declare that 
they had made a similar offer to their kinsmen among those of the king's 
party who had already fallen, and that they will heed it no more than did 
these. So they fight until all Cyneheard's party falls save one. 

Thus the followers of Cynewulf regard it as their duty to 
slay their kinsmen rather than to omit to avenge their lord, or 
as Plummer observes, " the tie of the comitatus supersedes that 
of the kin 2 ." An attitude similar, if not quite so rigorous, is 
found in the Icelandic Sagas of the Sturling period, but hardly 
elsewhere. 

An entry under the year 694 is usually regarded as dealing 
with wergild. The Kentians had burnt Mul, brother of Cead- 
walla, King of the West Saxons, with twelve of his companions 
(687). Ceadwalla dies the following year in Rome, evidently 
without having extorted compensation. The record for the 
year 694 runs thus: "In this year the Kentians negotiated with 
Ine (now King of the West Saxons) and gave him ' 30 thou- 
sands' for that they had previously burnt Mul." The relationship 
between Mul and Ine is not mentioned in the Chronicle, nor is 



1 "J>aet him nsenig mseg leofre naere J?onne hiera hlaford." 
a Two Saxon Chronicles, II. p. 46. 



238 ENGLAND 

Ine said to be a kinsman of Mul at all, but they would actually 
appear to have been third cousins 1 . Evidently Ine is exacting 
compensation, not so much for the death of a relative, as for an 
act of aggression committed by the Kentians against the West 
Saxons, and it is therefore doubtful whether the sum is really 
wergild in the strict sense of the term. No other relatives are 
mentioned. 

A more definite case of wergild is recorded by Bede. Aelf- 
wine was slain in a battle between his brother Egfrid and his 
sister's husband Ethelred. Egfrid and Ethelred were reconciled 
through the mediation of Archbishop Theodore, " and the due 
mulct was paid to the King who was the avenger for the death 
of his brother 2 ." The brother alone is regarded as the avenger 
(on the Continent the whole kindred were potential avengers in 
the eyes of the law) ; and we must further note the violation of 
the old rule that there should be no wergild within the kindred. 
Nor does popular tradition see anything amiss in the idea 
of wergild restricted to an individual, and that individual a 
woman. 

In the Leechdoms there is a story of Thunor's slaying of the two young 
princes Ethelred and -^Ethelbriht, and their sister was allowed to choose 
wergild for her brother "in such things as she and her nearest kinsmen 
liked best. And she then acted thus that she chose the wergild on that 
island that is called TeneS, that is 80 hides of land in that place, which she 
received from the king 3 ." 

Here again only individuals are mentioned. It may be objected 
that the mention of these individual recipients does not exclude 
the possibility that they divided the sum afterwards among their 
kinsmen, or, in the last story, that other kinsmen also received 
shares which are not mentioned. This is true : but it is none 
the less strange that all the cases are silent about the kindred. 



1 Through their father's great-grandfather, Ceawlin ; see under anno 685 (p. 38) and 
688 (p. 40). 

a Hist. Eccles. IV. 21 (Sellar's translation). The A. S. version has "ac he" mid 
feo wij> hine gepingode, "Saet heora sib wees." 

8 Leechdoms, ed. Cockayne, in. 426. "To 'Sam 'Saet hio hyre broiSra wergild 
gecure on swylcum J>ingum swylce hyre and hire nyhstan freondum selost licode. 
And hio "5 swa" dyde "Saet hi6 iSset wergeld geceds on "Sam fglande fte Teneft is nemned, 
Saet is hundeahtatig hida landes "Se hio '&er set tSaem cyninge onfeong." 



ENGLAND 239 

In the Battle of Maldon Oswold and Ealdwold, two brothers, 
are represented as encouraging their ' kinsmen ' winemagas 
to bear themselves well in the fight 1 , but we can hardly found 
a theory on the occurrence of this word. 

As far as the kindred are concerned, we must admit that 
Anglo-Saxon literature contrasts strangely with French and 
North German literature, though, as our sources are usually 
earlier than the latter, we might expect the contrast to be the 
other way. The Chansons de Geste, which we may equate with 
Beowulf, are very different from the latter with regard to this 
point. So are our early historians, Bede and the Chronicle, 
from the I3th and I4th century chronicles of Belgium and 
Friesland 2 , with their wealth of allusion to kindreds : so, too, 
is the popular tradition enshrined in the Leechdoms compared 
with the far later popular epic of Reineke Vos 8 . Against these 
we have to set an almost complete silence as to the mcegft in 
Anglo-Saxon literature. In the Historia Eliensis, we do, it is 
true, find a reference to certain evil persons making an attack, 
by the violence of their parentela, upon a farm called Berelea, 
and obtaining possession of it by force 4 . But as the attack was 
presumably unexpected, it would not need many armed in- 
dividuals to obtain possession of it, and we can hardly regard 
this passage alone as sufficient evidence for cohesive kindreds in 
England. 

In Wulfstan's address to the English we do, however, find the 
word mcegft, and it is used with reference to wergild. Wulfstan 
was Archbishop of York from 1002 to 1023, and, in lamenting 
the consequences of the inroads of the Vikings, he observes 
bitterly that if a thrall fled from his lord, and became a viking, 
and in a subsequent fight killed his lord, the latter would lie 
' unpaid for to all his maegS,' while if the lord killed the thrall, 
he would have to pay wergild as for a thane 5 . The passage is 



1 Battle of Maldon, 1. 306. The lines 73 ff., where Wulfstan is bidden hold the 
bridge "cafne mid his cynne (he wses Ceolan sunu)" appear to mean that Wulfstan, 
with the rest of his kin, was characterized by readiness in the fight. 

2 See supra, pp. 158 f. * Supra, pp. 182 f. 

4 Hist. Eliensis, Lib. I. cap. xlv. 

5 In Sweet's A. -S. Reader, xvi. 1. ii6f. ; gyf )>rsel j>sene |>egen fullice afylle, liege 
segylde ealre his maegiSe. 



240 ENGLAND 

interesting from several points of view, but until we are sure 
that a mcegft really means a full kindred, it does not throw 
much light on the number of recipients for wergild. Far more 
instructive is his twice-repeated lament over the decay of the 
closest family ties: "Too often now the kinsman spared (or 
protected ?) kinsmen no more than the stranger, nor father his 
child, nor sometimes the child his own father, nor one brother 
the other 1 ." And again : " We also know full certainly where 
that crime 2 happened that the father sold his child for a price , 
and the child his mother, and one brother sold another into the 
power of strangers outside this nation 3 ." 

We are reminded of the prophecy of the wise woman in the 
Icelandic Voluspa, as to the sins against near kin which would 
come to pass before Ragnarok. But Wulfstan's is no prophecy, 
and we may suppose that he was stating the facts, or something 
like them. It would need more than the one or two cases of 
the employment of the word mcegft, which is all that Anglo- 
Saxon literature and charters offer us, to counteract the 
impression left on us by Wulfstan's statements. It is true that 
he is speaking of a country ravaged by enemies, but we see 
no trace of a similar decay of the bonds of kindred in other 
countries similarly ravaged. For a people sometimes supposed 
to fight in kindreds it is a strange result for warfare to bring about. 

That the kindreds had left almost no trace of their survival 
in Normandy we have already seen, so that we need not look 
for a recrudescence of kinship-solidarity from that quarter. 
In fact it is generally assumed, even by those who hold that 
the kindreds were more powerful in Anglo-Saxon England than 
anywhere else 4 , that this solidarity died out very soon after the 
Norman Conquest. The completeness with which it did die 
out seems to us to need more explanation than it has ever 



1 Sweet's A.-S, Reader, xvi. 1. 78 f. Ne bearh nu for oft gesibb gesibbum J>e ma 
J>e fremdan, ne faeder his bearne, ne hwilum tearu his agenum feeder, ne bro'Sor 
oftrum. 

1 yrm^ might also mean ' poverty.' 

3 1. 105 flf. He also speaks of mergrasas, attacks on relatives. 

4 Nowhere else has it been suggested, I think, that a kindred could measure 
themselves with the king, or with such a town as London. 



ENGLAND 241 

received, if indeed the kindreds were not at least moribund 
before the Conquest. That the new rulers, and even the 
lawyers, had no animus against them (an animus which would 
have been reasonable if kindreds had really existed so powerful 
that they needed armed troops against them) 3s obvious from 
the indifferent way in which they admit references to the mceg^> 
in the post- Conquest laws. Yet not one of the borough cus- 
tumals yet collected shows any sign or trace of the kindred, 
save for the two cases of oath-helpers in London and Dunwich 1 , 
for the very rare use of the expression 'slain man's kin' with 
regard to the receipt of wergild 2 , and for two references, in 
Manchester and Preston respectively, to the advice or approval 
of 'friends' in connection with reconciliations after woundings 3 . 
There are no courts of reconciliation, no pledges of the kindred, 
no pleas for mercy by a kindred, no orfejde oaths to the borough 
authorities, no guardianship exercised by the kindred, and with 
the one exception of London (perhaps we should include 
Dunwich), no oath-helpers of the kindred. It would be hard to 
find a town in Denmark, North Germany, the Netherlands or 
Northern France where not a single one of these institutions 
is traceable: in England we can find none of them in any 
of the towns for which records have been published. There 
may be some way of accounting for this phenomenon, other 
than that there were no cohesive kindreds in England for some 
centuries before the Conquest 4 , but it will be hard to find. 

Nor do the deeds and Coqrt records of post-Conquest times 
show more traces of these features than the borough laws. 
Wergild remains, however, and with it the necessity of using 
the phrase ' kinsmen of the slain ' ; but we may well believe 
that these kinsmen were no more than the immediate family. 
In 1 202 we find one Hugh, son of Walter 'Priest,' having killed 

1 See above, p. 233. 

2 Bateson, op. cit. i. 30. The preceding extract from Archinfield refers to 
Welsh kins. 

8 Ib. I. 30, 31. 

4 Professor Vinogradoff, Social England, p. 218, speaks of the dismemberment of 
msegths as occurring in the nth century (before the Conquest); but this would hardly 
account for the completeness of their extinction. 

P. 1 6 



242 ENGLAND 

Roger Rombald and been outlawed, petitioning the sheriff to 
aid him in establishing peace between him and the kinsmen of 
the slain. There is no intercession on the part of Hugh's 
kinsmen, nor any hint of their joining in the peace. 

A more interesting case is that of Herbert of Pattersley 
and Thomas of Ingoldthorpe. A man has been slain (pre- 
sumably by these two) : Herbert is to go on a seven-year 
pilgrimage, Thomas is to procure one of the slain man's family 
to be brought up in a monastery, and "further the said Thomas 
shall give the kinsfolk of the slain 40 marks 1 ," to be paid in 
four instalments 2 . 

In none of the cases do we find more than one kinsman of 
the slain, or a husband and wife, appealing 3 . 

Bracton reports several homicides in his Note Book, but the 
slayer usually appears to be hanged 4 , so that composition is not 
to be expected. The only case where wergild is paid is from 
Archmfield. In that district, it is declared, it is the custom for 
the slayer to make peace with the kinsmen (of the slain) 9 . 
Archinfield is a district of Herefordshire, on the Welsh border. 

Such independent evidence as we possess thus more than 
bears out the conclusions we derived from the laws. It is of 
course possible that we have gone too far in ascribing to Danish 
influence passages which show a slightly greater degree of kin- 
solidarity. But even granted that every reference to the subject, 
including all those of the Leges Henrici, proved to be purely 
Anglo-Saxon, it would still be impossible to concede any real 
degree of kinship-solidarity to the Anglo-Saxons. The evidence 
from England need only be compared with that from the 
Continent to startle us into realizing how trifling the former is. 

Except for the institution of twelve sureties of the kin in 
wergild-treaties which we have seen cogent grounds for ascribing 



1 Maitland, Select Pleas of the Crown, i. p. 21 (Northamptonshire Eyre). Cp. also 
p. 54 (case 100; 1207). 

2 Ib. p. 56. 

8 Cp. pp. i, 13, 17, 40, 75, 81, 118. See also Selden Soc. Coroners' Rolls, 
pp. 18-21, 32, 35. 

4 Bracton's Note Book, ed. Maitland, Nos. 1472, 1473. 

5 Ib. No. 1474: " bene potest concordiam facere cum parentibus." 



ENGLAND 243 

to Scandinavian influence the whole case for kinship-solidarity 
in England really rests on the not very frequent occurrence of 
the word nuzgft in the laws. When we reflect that neither the 
limits nor the structure of this mceg are ever stated or even 
hinted at, and that the word mag, kinsman 1 , unlike the friund 
of Old Saxon and Old Frisian laws, can and indeed usually 
does signify some relative within the first degree, such as son 
or brother 2 , we must admit that this is a frail foundation on 
which to build so imposing a superstructure. But the negative 
evidence is much stronger than this, for we have to add the 
extraordinary fact that Anglo-Saxon literature appears to con- 
tain no word signifying 'cousin 3 .' While Saxon, Frisian, Dutch, 
Flemish and Picard sources, whether laws or charters, can 
supply us with terms for first, second, and third cousin, together 
with terminology for expressing cousins 'once removed,' the 
whole range of Anglo-Saxon literature does not furnish us with 
one instance of the use of such a word. Nor can I find the 
Latin ' consobrinus ' in the Latin charters. It is significant 
that English found it necessary to borrow the word ' cousin ' 
from French. 

Further, all our information with regard to the reckoning 
of kinship within the family is limited to the strange and almost 
certainly erroneous statement, that the father's brother is 
reckoned, with the brothers, as within the first 'knee 4 .' It is 
hardly too much to say that there would have been no question 
of a solidarity greater than thafof the immediate family among 
the Anglo-Saxons, but that students of our early institutions 
half-consciously sought the explanation of terms and of ideas 



1 In this point again there is a resemblance between England and Iceland : the 
Icelandic frandi is constantly used of son or brother. 

8 In Anglo-Saxon poetry mag occurs 4 times for ' son,' 9 times for ' nephew,' 
once for 'uncle,' 3 times for 'brother,' once for 'father-in-law,' once for 'grandson,' 
and 16 times vaguely for ' kinsman.' (For this information I am indebted to my late 
pupil, Miss Rosa Schnabel of Vienna. ) 

3 Several terms for ' cousin ' appear in the Anglo-Saxon vocabularies to translate 
'consobrinus 'etc. ( Wright, [A.S. and O.E. Vocabularies, snded., col. 173-4, 210, etc.). 

4 Too much weight must not be laid on this error, however, for it may well have 
been committed by a Dane imperfectly acquainted with English terminology, see 
pp. 224 f. , supra. 

16 2 



244 ENGLAND 

elsewhere than in England. Yet as soon as the Anglo-Saxon 
m&gK is studied side by side with similar organizations on the 
other side of the North Sea or of the Channel, it becomes 
apparent how singularly flimsy, by comparison, is the evidence 
for its extent, its activity, its cohesion and its duration. 

The evidence of place-names has often been adduced to prove that 
England was at any rate originally settled on a basis of kindreds. The 
place-names ending in -ing, it has been frequently urged, can only mean 
that settlement was largely effected by groups of persons descended from 
a common ancestor. This assumption has been half-discredited for some 
time 1 , but it may be as well to point out that it has now received its death- 
blow from Professor Kluge 2 , who proves its fallacy on philological grounds, 
after a survey of the Continental and English evidence. 



1 Round, Feudal England. 

2 "Sippensiedelungen und Sippennamen," in Vierteljahrsshrift fur social- und 
\Virtschaftsgeschichte, Bd VI. (1908), pp. 73 84. 



CHAPTER VIII 

CONCLUSION 

BEFORE proceeding to discuss our subject in its wider 
bearings, it will be convenient to summarize the results ob- 
tained in the foregoing chapters. 

I. Summary of previous chapters. 

In Denmark, signs of the partial survival of the kindred 
are not wanting even at the dawn of the i/th century, in spite 
of the hostility of powerful kings (from 1200 onwards), and of 
the Protestant Church. In Schleswig the old customs defy 
legislation levelled at them by king, duke or Landtag for an- 
other century still. In Holstein, though it is probable that the 
participation of the kindreds in wergild disappeared sooner than 
in Schleswig, they yet left their mark on other institutions, and 
certain of their functions continue to be exercised until near the 
end of the i8th, and indeed even into the iQth century. This 
is especially, but not solely, true of Ditmarschen, within whose 
territory alone we find the fixed agnatic kindred which can 
be loosely termed clan. In Friesland 1 the kindreds survive 
throughout the I5th century. In Hadeln and Bremen, and in 
the neighbourhood of Hamburg, they seem to have held out 
against adverse legislation until about the same date. 

In the more northerly parts of Central Germany we find 
occasional traces of their existence throughout the earlier Middle 
Ages. In southern Teutonic lands the last trace of a real solid- 
arity so far discovered dates from the I3th century. In Holland 



1 Friesland must be taken to include the Frisian districts of Oldenburg. 



246 CONCLUSION 

and Belgium the kindreds remain active throughout the I5th 
century, and indeed into the i6th, and hardly less long in 
Picardy. In Neustria, too, there are traces of organized feuds 
and treaties between kindreds until far into the I4th century, 
and so also in Champagne. Normandy, on the other hand, 
yields no evidence. In England the activity of the kindreds 
seems reduced to a minimum already in the /th and 8th 
centuries, when we first catch a glimpse of Anglo-Saxon in- 
stitutions. A slight revival of the solidarity of the family, which 
appears in the laws under Athelstan, is attributable to Danish 
influence, but it is not followed up, and the functions of the 
kindred are practically in abeyance long before the Norman 
Conquest. After that date no one has called their complete 
atrophy in question. In Iceland we have seen good reason to 
believe that the solidarity of the kindred was a thing of the 
past by the time the emigrants landed on the shores of the new 
country. In Norway we have caught a glimpse of a gradual 
disintegration of the kindred, beginning perhaps as early as the 
9th, and consummated by the end of the I3th century. In 
Sweden, on the other hand, everything points to the survival 
of kinship-solidarity throughout the I4th century 1 , and possibly 
for very much longer. 

It is perhaps worth noting that in Holland, Belgium and 
French Flanders the towns were the strongholds of kinship- 
solidarity, and that the evidence for cohesive kindreds outside 
the towns is by no means strong. In Hamburg, Kiel, and 
Liibeck 2 , on the contrary, the kindreds have been shown to 
disintegrate considerably sooner than in the surrounding districts, 
and the same is true of most of the larger Danish towns. 

II. The influence of the kindreds on social conditions. 

The importance of the //r-historic kindred-system is con- 
stantly recognized by historians, and has often been credited 
with more power than it can ever have possessed ; but it is no 



1 Except in Gotland. 

2 These are Hansa towns, but so also was Briel in Holland a town which was, 
as we have seen, a stronghold of the kindreds. 



CONCLUSION 247 

less constantly implied that such features of the system as 
survived into historic times had little or no influence on the 
body politic, and are only worth mentioning in connection with 
criminal law. It is true that the shifting nature of the Teutonic 
kindred precluded its ever having a chief, and asserting itself as 
a permanently compact body, so that its workings are bound 
to be obscure. Yet such organizations as existed in Denmark 
and Friesland, the Netherlands and Picardy, cannot have been 
without influence on the social conditions of their times. A man 
who can at any moment surround himself with a large group of 
persons, all of whom are willing to make sacrifices for him, is in 
a very different position to one who has to depend on his own 
efforts and on those of his immediate family for protection 
against aggression. 

Not only would his position be better from the social and 
political point of view : it would also be far better from the 
economic point of view. It is generally agreed that the 
isolation of the small landowner was his undoing, since it 
rendered him unable to withstand adverse circumstances, such 
as a bad year, a fire, a plague among his beasts, or a piratical 
raid on his homestead. " In solcher Nothlage war es immerhin 
der einfachste und beste Ausweg, den Grundbesitz aufzutragen, 
ihn als Beneficium zuruckzuerhalten und nun wenigstens eine 
sociale Stutze an dem Verleiher zu finden, die auch ihre 
okonomische werthvolle Seite hatte 1 ." This is all quite true 
of the isolated small landowner, but we cannot believe that 
it was at all true of the small peasant proprietor who was 
surrounded by a kindred. We have seen evidence to show that 
the cohesive kindred would rally round a member threatened 
with a lawsuit, and that it probably performed the functions 
of an insurance society 2 , besides keeping a jealous watch on 



1 Inama-Sternegg, Die Ausbilditng der grosseti Grundhtrrschaften in Deutschland, 
p. 54- 

2 See supra, p. 140. With regard to this point I should be inclined to seek 
evidence in the North German Dorfbeliebungen or Nachbarbeliebwigen, village enact- 
ments chiefly concerning the upkeep of roads and dykes, the conduct of agriculture 
etc. The provisions, usually of the iyth and i8th century, are frequently almost 
identical with those of the Kluftbiicher of Ditmarschen, and it is at any rate possible 
that certain of their prescriptions embody the practices and ideals of the earlier 



248 CONCLUSION 

the inherited land belonging to its members. In regions where 
the kindred preserved its solidarity it would thus be far less easy 
for a wealthy landowner, or even for ecclesiastical foundations, 
to exploit the financial and social difficulties of a poor neighbour, 
by acquiring his lands or by extorting rights over him at a 
period of want. In such regions we might reasonably expect 
to find few great territorial lords, and few seignorial privileges, 
together with a preponderance of free peasant proprietors. 
This is exactly what we do find in Schleswig-Holstein. The 
'nobles,' up to the I2th century, are peasant proprietors who 
perform certain military services to the king, and who receive 
certain immunities in return, but they are little wealthier than 
their fellows, and have no seignorial rights 1 . This class of noble 
disappears in the I3th century in Schleswig-Holstein, and 
somewhat later in the rest of Jutland, largely owing to poverty. 
The later class of nobles also sprang from the peasant farmers, 
but has a different history. In order to encourage colonization, 
the Count of Holstein granted fiefs in Eastern Holstein to 
persons of the peasant class, who thus became rich and powerful, 
with feudal rights over their dependents. Almost the whole of 
the later nobility of Denmark, as well as of Schleswig-Holstein, 
can be traced back to these colonists. Except in the colonized 
districts, the peasant farmers possessed their own lands, and 
continued to enjoy a high degree of local autonomy up to the 
1 6th and I7th centuries. This independence is also characteristic 
of the Old Saxon peasants 2 , until the country was overrun by 
colonizing nobles; and for a much longer period of time of 



kindreds. The village of Gross Queeren in Angeln, for instance, enacts that neigh- 
bours shall help to bring in the harvest of a belated fanner (Hanssen, Agrar-hist. 
Abhandlungen, II. p. 127); and it is occasionally laid down that all the community is 
to make an appearance at the funeral of one of their number (ib. p. 112). Such 
provisions as these are surely more likely to have originated among groups of kinsfolk 
than in ordinary parish ordinances. Since it is impossible to find any traces of 
them in the judicial records of the I7th and i8th centuries, it is surely permissible to 
believe that similar customs among groups of kinsfolk might have existed a century or 
two earlier without leaving any trace. 

1 Sering, op. cit. p. 199. 

2 Fisher, The Mediaval Empire, \. pp. 90 f., p. 137; Guilhiermoz, Origin* de la 
Noblesse (1902), p. 457. 



CONCLUSION 249 

East and West Friesland 1 . On East Frisian territory we must 
not forget that the districts of Wursten, of Stadtland and 
Butjadingen, and of Hadeln remained independent common- 
wealths, governed by their own peasantry, until the I5th 
and 1 6th centuries, and that it required repeated attacks by 
Dukes and Archbishops, with trained armies at their backs, to 
reduce them to subjection 2 . In West Friesland Westerwold, 
between Emsland and Drenthe, remained independent for hardly 
less long 3 . In Drenthe itself a 'Report of civil abuses' of 1557 
complains that the persons administering justice in Drenthe are 
mere ignorant peasant farmers who favour their own class*. 
In non-Frisian Holland, too, free peasant proprietors continued 
to flourish until the rise of the towns, when it would seem that 
the free kindreds flocked thither, preserving their independence 
throughout the whole of the Middle Ages 5 , and abandoning 
agriculture to a lower class 6 . 

In France, owing to the need for cavalry occasioned by the 



1 Ph. Heck, Die Gemeinfreien der Karolingischen Volksrechte, p. 234, goes so far 
as to maintain that in mediaeval Friesland ' ' eine demokratische Bewegung, von der 
wir nichts Naheres wissen, die Standesunterschiede, wenigstens in ihren Hauptwirk- 
ungen, beseitigt," but the more moderate view of F. Swart (Zur fries. Agrargcschichte, 
1910, p. 183) is to be preferred: "Im ganzen ist nicht zweifelhaft, dass trotz des 
Vorhandenseins reicher grundherrscherlicher Geschlechter der freie erbgesessene 
Hausmann wahrend der zweiten Halfte des Mittelalters dem fries. Wirtschaftsleben 

den Stempel aufdruckt Die Rolle. die die Gerichtsgemeinde beim Abschluss von 

politischer Vertragen spielt, das Fortbestehen des bauerlichen Fehderechts, die fast 
allgemeine Verbreitung des bauerlichen Patronatsrechts, die Stellung, die den Bauern 
bei Ausbildung der Territorialgewalt in der standischen Verfassung eingeraumt wird, 
sind iiberzeugende Beweise." 

2 Cp. G. v. d. Osten, Geschichte des Landes Wursten, Bremerhaven, 1900-2. 

3 Till 1316. G. L. von Maurer, Einleitung zur Gesch. der Mark- Hof- Dorf- und 
Stadt- Verfassung, p. 292. 

4 S. Gratama, Drenthsche Rechtsbronnen, Rapport van 1557 (van civilen abusen), 
vii. " In Drenthe is in de lottinge ende gerichte groot misbruick. Int yrste, datt sij 
gemeenlick den droste in der stemmen volge,...ten tweeden, binnen die etten buren, 
ongeschickt, die nyett een letter koenen scrijven ; ten dardenn die eine buer den 
anderen favoreserende." 

5 Cp. I. A. Nijhoff, Gedenkwaardigheden uit de Geschiedenis van Gdderland, IV. 
Dl. (Arnhem 1847), p. cxiii: " Trouwens, het moge niet ontkend kunnen worden, 
dat vrijen, onderscheiden van de edelen, door het gansche tijdvak der middeleeuwen 
been hebben blijven bestaan, en sich vooral in steden hebben nedergezet." 

6 Ib. pp. xciii-iv. 



250 CONCLUSION 

Saracen invasions, an immense impulse was given to feudalism, 
which naturally resulted in depressing the status of the ordinary 
freeman. Yet of the early Prankish kingdom it has been 
observed that " the prevalence of lordship is by no means so 
clear as in England 1 ." In the north-eastern districts there is 
reason to postulate the same flocking of free kindreds into the 
towns which is characteristic of Holland 2 . 

Of our own country, on the other hand, Professor Vinogradoff 
has said that " in a sense, the feudal law of England was the 
hardest of all in Western Europe." The dependent state of 
the ceorl in the greater part of England (before the Norman 
Conquest) has been commented upon by many authorities, and 
is so marked that Seebohm found himself forced to contemplate 
a serf origin for the English village community 3 . Maitland 
attributes the ceorl's loss of independence to the exhausting 
efforts made by Wessex to keep off the Danes 4 . This would 
account for his poverty, if poor he was, but would it account 
for manors and seignorial rights ? We must observe that the 
Viking raids (together with ecclesiastical influences, which should 
surely have been effective in England if anywhere) have been 
recently adduced as paving the way to an "Aufrucken der 
untersten Bevolkerungselemente " in Friesland 8 . Friesland 
suffered more than England at the hands of the Northmen, 
and it shakes our faith in the Vikings as the agents of social 
change to find them adduced in England as the chief cause 
of the prevailing serfdom, and in Friesland as contributing 
towards the rise of the agricultural classes. 

Moreover even in Northern and Eastern England the only 
form of independence granted to free sokemen is the right to 
choose their own lord. Lords, it seems, they must have ; and 
not only must they have lords, but for purposes of administra- 
tion and police supervision they must be dragooned into groups 
(the teoftung) 6 ) whose function it is to guarantee their orderliness 



1 Chadwick, The Heroic Age, p. 351. 

2 pp. 200 f., supra. 3 In The Village Community. 
4 Domesday Book and Beyond, p. 338. 

8 Ph. Heck, Alt fries. Gerichtsverfassung, p. 238. 
Cnut ii. 20, etc. 



CONCLUSION 251 

and produce them when required. In Wessex, too, feudal lords 
are frequently mentioned in Ine's laws 1 , before the Danish 
invasions. Of course England was a military kingdom, won 
at the point of the sword, but it has been maintained that it 
was not until some time after the conquest that the status of 
the ceorl begins to fall*, and in any case it is strange that the 
rigours of feudalism should be more pronounced in England 
than in the Prankish kingdom, which was also won by force 
of arms*. 

The real reason why the burden of the small landowner so 
soon proved too heavy for him to bear in England was not 
that the burden became so much heavier, but that it was a 
burden calculated for the backs of many individuals, not for 
one. Wergild for instance became a crushing imposition, 
leading to debt, serfdom, poverty, when the price was paid 
out of the cattle and household goods possessed by the in- 
dividual slayer and his immediate family 4 : when dispersed 
among a whole kindred it was comparatively little felt. 

Now let us compare England with a country which was not 
gained at the point of the sword. In Iceland individuals, not 
associated in kindreds, took peaceful possession of their land, 
and at the outset all landowners were on an equal footing. 
There were no Viking raids to repel, there was no national 
army whose officers might obtain over-lordship over their 
fellows; and yet, within a few years of the settlement, every 
landowner, unless himself a chief, had a lord to whom he owed 
military and other service, and the courts of justice were more 
seignorial than popular in character 5 . By the I2th century the 
small landowners were so crushed that the few powerful families 



1 Ine, cc. 21, 27, 39, 50, 76. Note also the manbot, fine paid to the lord for 
a slaying, as against the fine paid to the inhabitants of the district in Sweden, p. 70, 
supra. 

2 Cp. Vinogradoff, Social Life in England in the 1 1 th century, p. 36 and elsewhere. 
8 It must be remembered that large seignorial estates need not necessarily put an 

end to the ownership of land by groups of free peasant proprietors : in Russia the two 
have co-existed for centuries. Cp. Grosse, Die Formen der Familie, p. -211. 

* Cp. Lamprecht, Beitrage zur Gesch. des franzosischen Wirthschaftslebens im 
1 1 ** Jahrhundert (Leipsic, 1878), pp. 74, 94. 

6 This is noted by v. Amira, Paul's Grundriss (2te Aufl.) III. p. 101. 



252 CONCLUSION 

could demand what service and dues they liked. No resistance 
was ever made, despite the fact that the chiefs were always at 
war among themselves. Now if there is any fact agreed upon 
by all authorities, it is that these Icelandic settlers were no 
servile class accustomed to tyranny, but men with an extreme 
independence of character and traditions. Many of them, we 
are told, left Norway because they would not acknowledge 
Harald Hairfair's right to tax their ancestral lands, which they 
declared to be their own absolute property. And yet this is 
their history in Iceland, where they only needed protection 
against each other ! If they had had kindreds to protect 
them, should we have found this absolute and speedy decline 
into dependence on a lord ? It is not entirely the absence of a 
central executive which reduces them to this pitch, for in the 
commonwealth of Ditmarschen, which till the middle of the 
1 5th century was governed by its kindreds 1 , the noble class 
disappeared in the I3th century, and when Holstein nobles 
pressed in in the i6th century, after the subjugation of the 
country, the peasants united to buy them out 2 . 

As in Iceland, the chief feature of mediaeval Norwegian his- 
tory is the enormous power wielded in the I2th and I3th centuries 
by the nobles and their followings, until the class was practically 
annihilated in their protracted civil wars against Sverri 3 . 

In Sweden, on the other hand, the aristocratic class does 
not make its appearance until the end of the i ith century 4 , and 
when it reaches the summit of its power, in the I5th century, 
it admittedly owes much to its sense of kinship-solidarity 5 , as 
the extensive genealogical tables in Swedish history-books 



1 Cp. Sering, p. 123. These kindreds were democratic, that is to say there were 
no chiefs. 

2 Ib. p. .57- 

3 Cp. Munch, Den Norske Folks Historie. 

4 Cp. Sveriges Historia, I. (O. Montelius) ist ed. p. 461. It is to be noted that in 
the provincial laws fines are paid to the king, to the hundred or harad (district) and 
to "all men," i.e. the neighbourhood. There is thus no trace of seignorial justice. 

8 Op. cit. n. (H. Hildebrand), p. 244. "Del ar redan (s. 30 o.f.) papekadt, huru 
stormannens slagtforbindelser utofvade inflytande pa partigrupperingarna och dermed 
pi Sveriges oden. Mer an nagonsin tillfb'rne eger detta rum under den tid,...da der 
uppstar mellan stormanslagterna en taflan om herravaldet i Sverige " (1434-70). 



CONCLUSION 253 

testify. Even then, however, the Swedish commons are still 
powerful enough to play a leading part in the struggle between 

^king and nobles 1 . As late as 1608*, justice is still administered 
in rural courts, with 12 doomsmen, and even cases of man- 
slaughter are within their competence. 
We must note how very few traces of a hereditary class of 
nobles there are in the earlier period of the Viking Age, and 
indeed in the literary traditions from the Age of National 
Migrations. Kings there are in bewildering plenty, and it is 
they who lead migrations and Viking expeditions of every kind. 
Such nobles as there are seem to be officials of the king 8 . 
Round him are gathered an aristocracy of fighting men, often, 
it would seem, foreigners, to the wealth of whose equipment 
archaeological finds testify. When these comites, as Tacitus calls 
them, reach a certain age, the king grants them land and they 
settle down. Professor Chadwick has shown us that in England 
this class soon formed a hereditary nobility, which early gained 
rights over the neighbouring freemen in return for protection. 
But if we suppose strong cohesive kindreds among these neigh- 
bouring freemen, for instance in the Jutish peninsula, is it so 
certain that the retired comes, unsupported by a kindred of 
his own 4 , would obtain or maintain rights over his neigh- 
bours 5 ? The absence of seignorial rights among the nobility of 
Jutland, Schleswig, and Friesland may thus well be due to the 
strength of the kindreds ; just as the growth of these rights in 



1 Ib. p. 467 : " Att folket harvid icke hos oss, sasom i de fiesta andra lander, 
alldeles fbrlorade sin betydelse, utan kunde ved medeltidens slut framtrada med sadan 
kraft som det gjorde, torde vasentligen kunna forklaras af dens vana vid sjelfstyrelse, 
som i synnerhet i de smarre omradene tidigt rotfaste sig ; i kommunalforvaltningen 
deltogs bonderne jemte fralsemannen sasom likstalda. " 

2 Cp. G. O. Berg, Huru raft skipades i Sverige for trehundra ar sedan (Upsala, 
1908). 

3 Cp. Chadwick, Heroic Age, pp. 350, 360. It is noteworthy that it is the Swedes, 
Danes and Franks who have only one class of freemen. 

4 There is a Danish document of the 12th century which appears to represent the 
nobles of the kingdom organized, in groups, in an artificial brotherhood a very 
significant fact. See Steenstrup, Studier over Kong Valdemars Jordebog, ch. 21. 

8 The absence of a strong landowning nobility in the Jutish peninsula before the 
conquest of Britain seems to follow from the fact that the Anglo-Saxon nobility is 
shown to rise out of a class of royal officials. 



254 CONCLUSION 

England and in Iceland has to our mind a common cause, and 
is bound up with the absence of cohesive kindreds in those 
countries, the military nature of the settlement in England 
having only a subsidiary influence. 

These may be said to be hasty generalizations, and indeed 
the subject deserves a more exhaustive inquiry, but it seems 
that we must acknowledge this much : where cohesive kindreds 
persist into the later Middle Ages, there the peasant or townsman 
tends to be free. Where, on the other hand, the solidarity of 
the kindred disappears early, there the liberty of the individual 
suffers, and seignorial rights make their appearance. Further 
evidence pointing in this direction is not entirely lacking. Thus 
it is highly significant that wherever the kindreds survive the 
blood-feud remains a privilege of all classes, recognized, if 
deplored, by the law 1 . It is the unquestioned right of the slain 
man's kin in the Swedish law-books of the ijth century 2 . 
In France and the Netherlands it persisted until the same 
period and later, in spite of well-governed towns and powerful 
kings or nobles. In Namur we have seen a slayer acquitted in 
the 1 5th century, on its being shown that he committed the 
deed in a legitimate feud, the slain man's cousins having killed 
his father 3 . In England, on the other hand, there is no trace of 
legitimate blood-feuds after the time of Eadmund (c. 943) 4 . 
But the true significance of the survival of feud in France and 
the Netherlands is not fully apparent until we remember that in 
Iceland the blood-feud was never legally recognized, and that even 
the heir avenging himself on the slayer of his kinsman was as 
liable to penalty as the original aggressor unless he succeeded in 
killing his man before the next Althing 5 . There is only one way 
of accounting for this extraordinary discrepancy between the 
laws of anarchical Iceland and the comparatively well-policed 
Frankish towns and territories. In the latter large cohesive 
kindreds could stand on their rights, however disturbing to the 
community at large ; in England and Iceland the feud was a 



1 It is noticeable that continental state-craft attempts rather to obviate blood-feuds 
by asseurement and similar devices, than to abolish them. 

2 p. 69, supra. 3 p. 178 note 3, supra. 
4 p. 219, supra. B Grdgs, la, 147 etc. 



CONCLUSION 255 

matter between a few individuals only, and it was easy to override 
their wishes in the interests of the general public. 

We have already seen that kin-solidarity played a part in 
the rise of the early Prankish merchant families 1 . In late 
historical times its influence is easy to trace in the power 
wielded by the Dutch town officials, the Regents, who virtually 
ruled Holland until the end of the i8th century 2 . It is prob- 
able that the influence of certain families in other towns was 
also a result of their cohesion as units of a kindred 3 . 

It thus seems safe to admit that the kindreds of the early 
Middle Ages played no negligible part in the making of history. 
The countries where the kindreds did not survive England, 
Norway, and possibly the States of Central and Southern Ger- 
many avoided, it is true, a problem of government which gave 
other States some trouble, since among the difficulties in the 
way of a central government they did not have to reckon with 
the obstinate, if passive, resistance of the kindreds. Is it not 
possible, however, that they paid a heavier price for this immu- 
nity than their historians have ever quite realized ? 

In Iceland, it is true, there was no problem of a central 
executive, for in lacking a king, Iceland lacked also a nucleus 
round which a central executive could grow up. But since 
they further lacked the main cohesive principle of the ancient 
Teutonic State, the bond of kinship, the political efforts of the 
Icelandic settlers may be likened to the making of bricks 
without straw, and indeed the frail structure of their constitution, 
in some ways the most wonderful achievement of the Middle 
Ages, crumbled and fell through inner disintegration, before it 
was seriously threatened by enemies from without. But it is 
important to realize that theirs was a barren experiment, not 
because their constitution was an antiquated survival of a pre- 
historic Teutonic polity, but because it had lost both the factors, 
^the kindred and the king, which made for permanence and 
cohesion in the ancient order, and had found no sufficient sub- 



1 p. 202, supra. 2 p. 166, supra. 

3 Cp. C. Stiive, Gesch. des Hochstifts Osnabrilck (1853), p. 303: " Im Rathe 
waren die Geschlechter herrschend, die ohne bestimmtes Vorrecht Uberwiegenden 
Einfluss besasseu" (early in the isth century). Cp. p. 241. 



256 CONCLUSION 

stitute. We must therefore beware of regarding the Icelandic 
commonwealth as a new Germania of Tacitus, miraculously 
appearing in the Northern seas to show us what ' Urgermanentum' 
was really like. Anglo-Saxon England is almost equally suspect 
from this point of view, for, if it has kept the king, it too has 
lost the kindred, probably a much more integral part of the 
ancient Teutonic State. In fact, if we want to seek after the 
Urgermanisch, would it not be safer to turn our attention to 
those regions where its two main elements remained longest in 
something like their ancient equilibrium, namely in Denmark 
and the old Danish provinces, and in Southern Sweden ? 

We may summarize what seems to have been the tendency 
of the kindreds by describing it as democratic 1 , that is to say 
that in discouraging the rise of petty local chiefs they tended to 
keep the status of all freemen equal, but we must believe that 
they achieved this result by refusing opportunities to the strong, 
as well as by protecting the weak against outside aggression. 
They were not democratic in the sense that the mediaeval 
Church was democratic. But though it seems that we must 
concede this quite considerable degree of influence to the 
kindreds, we must be careful to note that it implies no active 
organization, no conscious political aim, on their part. It was 
achieved as it were anonymously, by what we may call passive 
resistance. We still have no right to think of the Teutonic 
kindreds as ' organizing ' themselves in any but the most tem- 
porary manner, or as combining for aggression. A kindred can 
only be said to exist at the moment when it groups itself round 
a given kinsman, and a large proportion of this group must 
merge into other groups if some other individual is in need. So 
long as kinship was recognized through both male and female 
i.e. during the whole historic period these characteristics of 
the kindreds must have set very definite bounds to their political 
power. 

1 It is perhaps worth while to note that various observers have commented on the 
unusual degree of social equality between the families of farmers and of clay-labourers 
in villages in Ditmarschen at the present day. In Wursten, where the kindreds 
were powerful (v. d. Osten, p. 46), no native succeeded in obtaining seignorial rights 
until 1673, when the king of Sweden granted them to one family. Ib., Theil II. 
pp. 131 ff. 



CONCLUSION 357 

We need only compare the kindred with its offshoot, the 
gild, to realize the deficiencies of the earlier group in this respect. 
The gild is definite, organized, adaptable, transplan table every- 
thing that the kindred is not. Yet it is a question whether the 
very indefiniteness of the kindred, its anonymity, its shifting 
outline, what we may call its Protean attributes, did not qualify 
it for its obscure workings towards social equality better than 
a fixed organization, more open to attack, could ever have done. 
There can be no question that the kindred, through a long 
course of centuries, clung far more closely to the democratic 
ideal than the gild. The gilds did a great work for the towns 
and the craftsmen, but did they achieve more than the kindreds, 
wherever they survived, accomplished for the rural districts or 
for the agricultural classes ? 



III. Causes of tJte Decline of the Kindreds. 

We must now set ourselves to consider the causes of the dis- 
integration of the kindred, but it is a task of unexpected difficulty, 
owing to the failure of the commonly-received explanations when 
confronted by the facts we have observed. For instance, the 
influence of Roman law has been considered to be the dis- 
integrating factor: where the Roman law first took hold in 
Southern Germany, there, it was declared, did the kindreds first 
disappear. So long as the history of the kindreds in Germany 
was considered without reference to the history of the institution 
elsewhere, this explanation seemed sound enough. But if Roman 
law was the solvent, how was it that the kindreds were so tena- 
cious of life in Northern France, the Netherlands, and North-west 
Germany conquered by Romans, or by partly Romanized 
Franks, and during the later Middle Ages steeped in an 
atmosphere of Roman ideals of law while in Norway and 
Iceland they disappeared before Roman law was even a 
name ? 

Then again the influence of Christianity has been invoked, 
and indeed its doctrine of the responsibility of the individual 
must to a certain extent have acted adversely on the kindreds, 
though perhaps not as much as has been sometimes assumed. 

P. 17 



258 CONCLUSION 

For the result of impairing the sense of corporate responsibility 
was too often to increase the temptation to take summary ven- 
geance. That there was a tendency to sporadic and ill-disciplined 
acts of vengeance wherever the kindred was early shattered 
may well prove to be the case : Frauenstadt's collection of in- 
stances in South Germany 1 , and the Icelandic Sagas, might go 
far to establish such a theory. So that the early Church in 
Northern Europe probably took the better part in profiting by 
the sense of corporate responsibility rather than in weakening it. 
Almost everywhere the Church mediates between the kindreds, 
and few would criticize her role 2 . But whatever the effect of 
the mediaeval Church in urging the acceptance of wergild rather 
than recourse to arms, it is obvious that neither Christian doc- 
trine nor ecclesiastical influence can be the determining factor 
in the decay of the kindreds, when once we admit that they 
survived many centuries of Christianity in France and Germany, 
while their disintegration was complete in heathen Iceland by 
the year iooo 8 . 

A similar objection applies to the theory that a strong 
executive was the force which finally pulverized the kindreds. 
France and Denmark, at least, had as strong a line of kings 
as any mediaeval Teutonic state, yet in France the organized 
feuds of the kindreds were with difficulty checked in the I4th 
century, and in Denmark the kindred clung together for two 
centuries more. In Iceland, on the other hand, where the 
kindreds might have been a substitute for a strong executive 4 , 
those ancient Teutonic organizations had but the feeblest hold. 

Yet there can be no doubt that though Roman law, Chris- 
tianity and strong executives cannot be made to explain the 
decline or predominance of the kindreds in the various parts of 
Teutonic Europe, they were nevertheless factors which actually 
had a mighty influence in pulverizing the kindreds in those 



1 Frauenstadt, Blutrache und Todtschlagssuhnt im dmtschen Mittelalter, Leipsic, 
1881. 

2 We even find the Church paying compensation on behalf of the delinquent : cf. 
Gregory of Tours, vn. 47 (in 585). 

3 The year of the introduction of Christianity. 

4 As they actually were in Ditmarschen and in Wursten. 



CONCLUSION 259 

regions where the institution had survived the earlier Middle 
Ages. It is the recognition of this fact which makes our task 
so difficult, for we have to account, not only for the disparities 
we have already noticed in the duration of the system, but also 
for the resisting-power exhibited by the kindred-organization 
all through the Middle Ages in just those regions where these 
three destructive influences were brought to bear on it, in strong 
contrast to its early disappearance where it had apparently 
nothing to contend against. 

Our survey of the evidence in those countries where the 
kindreds showed marked vitality seems to suggest that the I4th 
century was the first in which their cohesion was really seriously 
threatened, and the date leads us to infer the possibility that the 
Black Death, which ravaged Northern Europe in 1349-50, may 
have had a more adverse influence on the kindreds than has 
been suspected. By killing off a very considerable proportion 
of the population, it may have helped to disintegrate the kin- 
dreds, both by encouraging migration 1 and by causing individuals 
to look to themselves instead of having recourse to the help of a 
wide group of kinsmen. There may well be an element of truth 
in this theory, but of course its uses as an explanation of the 
phenomena just described are but limited. It cannot, for in- 
stance, be made to account for the disappearance of the kindreds 
in Norway, England, Iceland, or even in Central and South Ger- 
many, since kinship-solidarity as a social factor of importance had 
entirely disappeared in these regions long before the visitation of 
the Black Death. Yet other explanations which have been put 
forward are no more satisfactory. 

It has been maintained 2 that the Teutonic kindreds broke 
down as a result of their recognition of cognates. This theory, 
however, seems untenable in the light of our recent survey, for 
those regions where the most absolute equality between agnates 
and cognates prevails are the very strongholds of the system, 
while in Norway and England, where we traced a discrimination 



1 Cp. Hoeniger, Der schwarze Tod in Dtutschland, Berlin, 1882, p. 94. 

2 Cp. Vinogradoff, Zs.f. Social- unct Wirthschaftsgeschichte, Bd vn, and Sering, 
op. cit., p. 141. 

172 



260 CONCLUSION 

in favour of agnates, it disappears early. But we shall deal 
with this question again later. 

Another suggestion is that the village-community form of 
/ settlement was favourable to the organization of kindreds, while 
a system of solitary homesteads tended to weaken them. This 
suggestion is attractive at first sight, since solitary homesteads 
are characteristic of Iceland and of most of Norway. But un- 
fortunately they are equally characteristic of the greater part of 
Friesland and the Netherlands 1 , where the kindreds show strong 
vitality, while the village-community system is prevalent in 
England, where the kindreds languished. 

As far as the Norwegian kindreds are concerned, emigration, 
in the form of Viking expeditions, might be considered to have 
had an adverse effect upon kinship-solidarity, but this suggestion 
again is contravened by the fact that the kindreds were especially 
strong in the Jutish peninsula, whence emigration must at one 
time have taken place on a very large scale, and in the rest of 
Denmark, which took its full part in Viking expeditions. It 
would of course also fail to explain English conditions. 

The disappearance of kindreds has also been ascribed to an 
increased density of population. " Sippenwirthschaft," it has 
been said, fails in intensive culture where that becomes neces- 
sary, and has consequently only survived where the population 
is of no great density 2 . This may be true in certain cases, 
though it is hard to reconcile with the fact that the wasteful 
system of strip-holdings survived in Teutonic countries long after 
the equal partition of land among the kindred, supposed to be 
its justification, had disappeared. But in any case, if there is 
a connection to be traced in Northern Europe between density 
of population and the survival of kindreds, it is of an almost 
opposite kind to that suggested. Probably the marsh-lands of 
Schleswig-Holstein, where the kindred survives longest, would be 
found to offer the best example of intensive culture, as also of 
density of population, while the sparsely inhabited Iceland 
and Norway, with their absence of kin-solidarity, do not en- 
courage us to pursue this line of investigation. 

1 Meitzen, Siedelung und Agrarwesen, Atlas, Karte 66 a . 

3 E. Grosse, Die Formen der Familie (Freiburg 1896), pp. 211-1. 



CONCLUSION 26l 

There seems to be a growing tendency to regard the southern- 
most part of Sweden 1 , Denmark, Schleswig-Holstein and the old 
Danish Duchies as the original home, at any rate from the Stone 
Age onwards, of the Teutonic race 2 . Certainly no other theory 
can so well be reconciled with the facts, both archaeological and 
philological. Now it is exactly these regions where the solidarity 
of the kindred persisted longest. The kindred-system of those 
tribes whose migrations did not lead them far afield, as the 
Frisians, shows a not very much reduced vitality. It is easy 
to imagine that the tribes which met with little resistance on 
their migrations, or who overcame it speedily, and settled down 
comparatively soon, would preserve the organization of the kin- 
dred almost unimpaired. Such a fortunate tribe were the Frisians ; 
such, to an even greater extent, the Salian Franks, most of whom 
remained in the south-west regions of the basin of the Scheldt 3 . 
On the other hand, many of the South or Middle German peoples 
must have been in an unsettled condition for centuries, liable to 
the necessity of frequent migration, and constantly at war. 

Yet the disintegration resulting from years of wandering and 
of warfare would not be very great except in extreme cases. But 
the analogy of the Icelandic settlers will incline us to accept the 
idea that a migration involving transport by sea was especially 
liable to impair the sense of kin-solidarity among those who 
venture on it 4 , though the organization of those who remained 



1 On their arrival in Skane it is quite probable that they had difficulties with 
another (non- Aryan) race: see Hansen, Landnam i Norge (1904), and A. Brj*gger, 
Den arktiske Stenalder (Norges Videnskabl. Skrifter, Christiania 1909, pp. i 278). 

2 Hansen, op. cit. ; Kossina, Die vorgesch. Ausbreitung der Germanen ; Zs. d. 
Vereins /. Volkerkunde, VI (1896, p. i ff.) ; A. Kock, Ar Skane de germanske folkets 
urhem? (Svensk) Hist. Tidskrift 1905; Cambridge Medieval History, vol. I. p. 183. 

3 We shall presently observe that after Denmark and Sweden, the Prankish 
wergild laws seem to adhere the most closely to what we must suppose were old 
Germanic principles. 

4 The above does not apply with the same force to the case of clearly defined 
clans, each of whose members bears the same name as all the others, and regards 
himself as kin to him, however distant the actual relationship may be. Not only 
is such a clan more capable of undertaking a common venture, such as the building 
and manning of a vessel, but all the migrating members of the clan recognize each 
other and would tend to form a nucleus for a clan-group in the new country. In 
the case of the ordinary shifting kindred of the Teutons, the groups of kindred on the 
paternal and maternal side respectively are not in any way related to one another, 



262 CONCLUSION 

behind might not be appreciably affected. It is extremely un- 
likely that each group of kindred would build a vessel and man 
it exclusively, or even mainly, with their own kinsmen ; on the 
contrary, all analogies show us that any individuals wishing to 
join an expedition would rally to the first ship that was sailing, 
and probably remain permanently associated with its crew in 
the new country. Professor Vinogradoff has pointed out that 
in the ancient Teutonic tribal system, which involved an equal 
claim to the ancestral estate on the part of a number of co-heirs, 
the danger of excessive subdivision of land was avoided by the 
renunciation of their claims on the part of the supernumerary 
heirs, who received an indemnity, calculated not according to 
the value of their shares, but to the ability of the estate to 
bear the outlay 1 . Where this system of co-heirs (the sons and 
daughters) still persists, in the moorlands of Schleswig-Holstein, 
these supernumerary heirs often leave home, permanently or for 
a time, to settle in the towns, since they have not the means to 
marry if they remain on the land. Professor Sering, in speaking 
of this custom, observes: "In welcher Ausdehnung es iiblich ist, 
dass Geschwister beisammen bleiben oder auseinander gehen, 
hat von jeher wesentlich von dem allgemeinen Gange des volks- 
wirtschaftlichen Entwicklung abgehangen. Steigt sie kraftig 
aufwarts, so wandern viele ab und griinden ein eigenes Heim; 
andernfalls bleiben mehr unverheiratet zu Hause. Auf diese 
Weise vollzieht sich seit Alters her die Anpassung der Be- 
volkerung an die vorhandenen UnterhaltsgelegenheitenV 

In prehistoric times in Denmark these supernumerary heirs 
no doubt went to swell the military followings of kings, who 
like themselves were very often in a landless condition 8 . The 



still less have they a common name. There is no reason why my father's first cousin 
should consort with my mother's first cousin in a new country, if I am not there to 
form a connecting link. 

1 Art. Village Communities in Encycl. Brit., nth ed., vol. 28, pp. 69 73. 

2 Sering, op. cit., p. 173 ff. 

3 Among royal families the centrifugal force must have been even stronger, sine 
every member of a royal family was a king, and if he could not rule over the ancestra 
kingdom he was very likely to seek to obtain another kingdom for himself a state 
affairs of which Snorri seems to have preserved the tradition for Norway. Henc 
perhaps the absence of any suggestions of solidarity within the kindred in the olde 



CONCLUSION 263 

historical sagas of Iceland and Norway give us the clearest 
insight into this process in Norway, and it is just these ' super- 
numerary heirs/ encouraged to seek other means of livelihood 
than agriculture, who join with others in the same position, and 
leave their country on permanent or temporary Viking raids 1 ; 
in the earlier period under the leadership of a king, later under 
a noble. A classic example is afforded by the sons of Earl 
Hrollaug of Norway, one of whom, Gongu-Hrolf, is declared by 
Snorri to have founded the Duchy of Normandy ; one lost his 
life in the Western Isles of Scotland on an expedition with 
Harald Hairfair; another became Earl of the Orkneys, while 
yet another settled in Iceland. It seems more than probable 
that the peoples of Schleswig-Holstein 2 lived under similar 
conditions in the 5th century, with Viking expeditions, and 
finally the permanent conquest of England, as the result. The 
settlers in England might therefore be almost as lacking in full 
kindreds as the settlers in Iceland a few centuries later. Before 
we make certain that the invaders must have come over en 
masse, in full kindreds, in order to achieve such a vast result 
as the conquest of England, we shall do well to remind ourselves 
that the feat was all but paralleled in a much shorter time and 
in the teeth of a resistance at least equally obstinate, by the 
Vikings of a later period ; yet that no one thinks it necessary 
to assume a wholesale emigration of kindreds in this case, or 
to postulate that the organization of the Vikings, when they 
arrived in England, was on a basis of kindreds. 

If we are to adopt the Danish theory that the Normans 
are mainly of Danish, and not Norwegian origin, we can point 
to Normandy also as affording corroborative evidence for the 



traditions of the period of national migrations a phenomenon to which attention has 
been recently directed (Chadwick, The Heroic Age, pp. 347-8, 373-4, 391). 

1 Some of the Swedish runic stones offer corroborative evidence: cp. Olson, 
Yngvars Saga viftfyrla, Bihang, p. 51, No. t ("Thialfi and Holmlaug had all these 
stones erected in memory of their son Banki, who himself alone owned a ship and 
steered east with Yngvar's host"). 

2 I do not see any reason to suppose that all the adventurers who won England 
were actually from Schleswig-Holstein, though the leaders were. We know that the 
invaders called ' Danes ' by the English included Norwegians and probably Swedes, 
and that the ' Norman ' conquest was largely effected by non-Norman mercenaries. 



264 CONCLUSION 

disintegrating influence on the kindred of a settlement by sea. 
According to this theory the invaders of Normandy came from 
the highly cohesive kindreds of Denmark. Yet the traces of 
kinship-solidarity in thirteenth-century Normandy are far fainter 
than in other districts of Northern France, which the Teutons 
reached by land. 

So far as it goes, too, the evidence available for the eastern- 
most and westernmost of Teutonic settlements bears out our 
contention. The laws of the Swedish kingdom in Russia, won 
by naval -expeditions, show but a feeble conception of kinship : 
the slayer alone pays for his deed, and the right of vengeance 
is limited to brother, father, son and nephew 1 . On the other 
hand, West Gothic custumals in Spain show division of wergild 
between kinsmen, definitely organized blood-feuds between kin- 
dreds, and oath-helpers of the kindred : in fact, as Professor de 
Hinojosa observes : " Die spanische Familie der ersten Zeit des 
Mittelalters zeigt in dem Zusammengehorigkeitsgefuhl, das sie 
beseelt, die eigenartigen Ziige der germanischen ' SippeV " The 
West Goths travelled a long way, but they travelled by land 8 . 

Thus we are driven to the conclusion that the main disin- 
tegrating factor in the case of the Teutonic kindreds was 



1 Jaroslav's Pravda (from first half of nth century) c. xxvm. and I. n. (in 
Ewers, Alteste Recht der Russen 1826, pp. 264, 306). In Oleg's treaty with the 
Byzantine Emperor in 912 it is laid down that if a Russ kills a Christian or a Christian 
a Russ, the slayer shall be put to death on the spot, but if he flees, his property is 
taken by the kinsmen of the dead (Dareste, Etudes d'hist. de droit, Paris 1889, p. 206). 
There is thus no liability of the slayer's kinsmen. I do not understand from what 
passage Dareste (p. 213) deduces the participation in wergild of distant kinsmen of 
the slain. 

2 Das Germanische Element im Spanischen Rechte, in Zs. der Sav. Stiff (Germ. 
Abth.), xxxi. (1910), pp. 282359. 

3 This particular instance suggests that the earlier the migration, the greater the 
cohesion of the kindred, and it is very probable that some connection of the kind 
might be traced. But there is hardly enough difference in time between the Frankish 
settlements in Gaul and the Anglo-Saxon conquest of Britain to account, on this 
theory, for the strength of the kindreds in the one country and their weakness in 
the other. Moreover the Vierlande, settled by Dutch immigrants at a late date, and 
Lubeck and other towns not founded until the I2th century, yet show considerable kin- 
solidarity. So do the records of the Silesian towns investigated by Frauenstadt, yet 
these only became German in the late Middle Ages. 



CONCLUSION 265 

migration, and especially migration by sea. Denmark and 
Schleswig are the strongholds of the kindreds : those of Fries- 
land, the Netherlands and Northern France had vitality enough 
to withstand centuries of highly adverse influences, whereas 
the Icelander stood alone from the moment he set foot on 
Icelandic soil ; and it may be questioned whether the Anglo- 
Saxon settler was in much better case in this respect. Here, 
too, we should find an explanation of the weakness of the kin- 
dreds in Norway, for much of the settlement of that country 
must have been accomplished by sea, and at a very late period 1 . 
No doubt the character of the country and the consequently 
often individualistic nature of the settlements were unfavourable 
to kinship-solidarity, and it may be that the small numbers 
of the invaders 2 and their relations with the aboriginal race 
were a partial cause of the weakness of the kindreds. 

IV. The pre-historic group. 

Throughout this book we have so far dealt with matters for 
which there is contemporary evidence in one form or another. 
It is surely pardonable if we now turn back to see how far the 
information we have gleaned in our researches will serve to 
throw light on the problems of an earlier time. With this end 
in view we will co-ordinate and tabulate the statements of 
wergild discussed in previous chapters. 

I. Summary of wergild evidence. The first point to strike 
us in the wergild schemes of the various Teutonic countries is 
their fundamental similarity. 

Wherever there is any evidence at all that the schemes were actually in use, 
we find the sum paid in three instalments. In all cases the extent to which the 
individual participates is in the proportion of his degree of relationship with 
the slayer or the slain 3 , and the liability of any given degree on the slayer's 
side usually corresponds in amount to the claim of that degree on the side 
of the slain. There appear to be two main methods of dividing that part of 
the wergild which goes to or is paid by the kinsmen outside the immediate 

1 The Trondhjem district and northwards does not seem to have been settled by 
the Teutonic invaders before the Iron Age ; cp. A. Hansen, Landnam i Norge. 

2 Hansen, op. cit., pp. 197 ff. 

3 Or, as in the North Frisian scheme, according to the degree of relationship 
between the slayer and the group of kindred to which the individual kinsman belongs. 



266 CONCLUSION 

family. The reckoning by thirds characteristic of the Salic Law is found 
again in the Oudenarde wergild scheme of isoo 1 , and there are faint traces 
of it in the Norwegian wergilds 2 , one of which however shows a certain pre- 
dilection for reckoning small sums in fifths 3 . But far more widespread is 
the reckoning which gives to each further degree of kinship half the amount 
accorded to the degree nearer. It is obvious in the North Frisian wergild*, 
and in the minor local schemes from both East and West Friesland 6 , though 
there is, oddly enough, no trace of it in the full scheme given in the general 
custumal for Friesland west of the Lauwer 6 . And it appears in all Dutch 
wergilds 7 . If we abstract the classes of relatives of unequal degrees we find 
that it forms the basis of three more schemes : those from Lille and from 
Hunsingo (West Friesland), and that of the obsolete (Norwegian) Baugatal 8 . 
The principle is most clearly stated in the Swedish and Danish laws, which 
apply it consciously and consistently. 

A point of more importance is the proportion borne by the 
heir's compensation to the kindred-compensation 9 . Here again 
the Norwegian wergilds elude us owing to their complexity, but 
for the other countries we can make out the following table : 

Iceland 

Sweden C 

Denmark 

Friesland 

Holland 

Belgium 

France 

We observe that Denmark rates the claims (or responsibility) 
of the kindred highest : Sweden comes next, Belgium and 





Heirs 
all 


Kindred 
none 




7 


4 






2 




2 


I 




2 


I 




... 2 


2 




2 


2 



1 p. 174, supra. 

2 p. 59, supra (class III). Cp. also p. 51 (cl. II e), p. 58 ( 228) : the brother of 
the slain pays two-thirds of the sums paid by the slayer himself in II (i). The 
principle is definitely stated with regard to the sakaukar (IV), p. 60. 

3 p. 50 (cl. lvt>) and p. 52, supra (V). In the case of small sums, fifths seem 
unnecessarily complicated fractions for an age when the precious metals could only be 
reckoned by weight. Possibly they were paid in cloth, or we may hazard a guess 
that there is a connection between them and the spiral arm-ring which is known to 
have been used as currency. It would be easy to reckon in fifths if these rings 
contained five (or two and a half) spirals. 

* p. 106, supra. 5 pp. 148, 152 (second and third cousins) and p. 153. 
8 pp. 149-50. 7 pp. 160, 161, cp. p. 162 (Waterland). 

8 In Baugatal it is only approximately correct: brother 24: first cousins 12, 
second cousins 5$, third cousins 2$ (p. 12, supra). 

* For the sake of simplicity I consider only the kindred of the slain. 



CONCLUSION 267 

France treat both alike, while Friesland and Holland exactly 
reverse the Danish ratio. 

The next point to consider is the distinction between agnates 
and cognates. Perhaps even after all our studies of wergild it 
will still strike us as strange that so few Teutonic wergilds 
discriminate between persons related through males only and 
those related through women, whether on the paternal or 
maternal side. Except for South Germany, which does not 
concern us here, it is only in Ditmarschen, Norway and 
England that this distinction is observed 1 . In Ditmarschen 
the whole of the wergild probably went to agnates : in Norway 2 
there is a distinctly preferential treatment of agnates, and in 
England a praecipuum, the healsfang, was definitely reserved for 
agnates, whatever may have been the case with the remainder 
of the wergild. 

The peoples who ignore the distinction between agnates and 
cognates are however perfectly conversant with that between 
father's kinsfolk and mother's kinsfolk, and we find these par- 
ticipating in the following proportions : 

Father's Mother's 
kinsfolk kinsfolk 

Sweden : i. All districts except Ostgotaland ... i i 

2. Ostgotaland (later) 3 2 

Denmark 

Holland 

Belgium 

France 

North Friesland 

East and West Friesland : 
(i) local wergilds 3 



1 The later Vestergotland law in Sweden distinguishes between them, indeed, but 
treats them alike. The recognition of the distinction is presumably due to Norwegian 
influence. 

2 Including Baugatal. 

8 Brunner (p. 29, Anm. i) suggests that though the mother's kindred is not stated 
to receive less than the father's kindred in the Hunsingo clause, this may yet be the 
case. He does not however deal with the Fivelgo wergild, which shows the same 
features. Moreover we have already noted that the local wergilds and the Wester- 
lauwersche scheme are fundamentally inconsistent as regards the proportions paid to 
the degrees of kinship (p. 266, supra) ; so that it is unsafe to base theories on the 
probability of their similarity. 



268 CONCLUSION 

Father's Mothers 

kindred kindred 
(2) Allgemeine Gesetze des Westerlauiverschen 

Frieslands 1 3 2 

The general prevalence of the fluctuating kindred, both in 
the original home and in the later settlements of the Teutons 
(with the exception of Ditmarschen), does in itself suggest 
difficulties in the theory of originally agnatic kindreds, and 
these difficulties increase in the light of our general review of 
the later evidence. If the agnatic kindreds had existed any- 
where, it would surely be in Skane, Denmark, and Schleswig, 
where the Teutonic race has been settled for a great period of 
time. Here then, we should expect to find the agnatic element 
strongest, or, if not, at least some clear traces of the struggle 
between the two elements. But what we do find is that in 
Skane, Denmark, and Schleswig (including North Friesland), 
the kindred is not divided into agnates and cognates at all, but 
into father's kindred and mother's kindred, each of which receives 
the same sum in wergild, and has the same claim in inheritance. 
This latter feature is also characteristic of the Saxon law. " Es 
ist eine auffallende Erscheinung," observes Heusler, " dass das 
ostfalische Recht in der Seitenlinie jeden Unterschied zwischen 
Mann und Weib, Vater und Mutterseite scheint preisgegeben 
zu haben 2 ," and he adds that the Magdeburg law resembles it in 
this respect. The old Holstein custom makes cognates and 
agnates equally liable for contributions towards the maintenance 
of pauper relatives. 

Is not all this rather difficult to reconcile with the hypothesis 
of an originally agnatic society, which gradually, to its undoing, 
admitted the principle of cognation ? Is it not vitally significant 
that the Danish peoples, the South Swedes, the Frisians and the 
Franks have not even grasped the distinction between agnates 

1 This is the ratio between the shares as far as uncles and second cousins are 
concerned, but the ratio between the shares of third cousins is as 28 to 27. The fact 
that the father's brother receives more than the mother's brother has occasionally 
been considered to show a preferential treatment of agnates, but it is clear from the 
fact that this proportion is maintained in the next class that it is based on the 
distinction between the paternal and maternal kindred, not that between agnates 
and cognates. 

8 A. Heusler, Instil, des deutschen Privatrechles, n. p. 603. 



CONCLUSION 269 

and cognates, or, if they have, show absolutely no sign of it ? 
They divide the kindred into father's kinsmen and mother's 
kinsmen, and treat the two exactly alike 1 . If agnation had ever 
been the rule among the Teutonic race, we should expect the 
institutions of these peoples, of all others, to have kept some 
trace of such a state of society. Where we do find discrimina- 
tion in favour of agnation is where the kindred disappears early 2 : 
in England, in Iceland, in Norway, and probably among the 
Bavarians and Langobardians 3 i.e. on the fringes of the Teu- 
tonic world. This description also includes the Saxons too, 
who do at least recognize the difference between agnates and 
cognates 4 , and whose probably agnatic Vetterschaften appear to 
exist side by side with the kindred in Eastern Holstein 5 . It is 
obvious that there must be a strong tendency to an agnatic 
reckoning of kinship wherever there is a large alien and despised 
population, as among the Saxons, or indeed wherever a con- 
quering race takes possession of a subject land 8 . 

The evidence we have just adduced thus tells heavily against 
the case for agnatic clans in the prehistoric period. Yet if the 
group of kinsfolk was originally a land-owning unit, as is usually 
assumed, the fluctuating kindred cannot be the original system 
of the Teutons, for such a group cannot hold land. When, in 
addition to the facts just stated, we remember that there is 



1 Except (for Friesland) in the Westerlauwersche wergild. No distinction is 
made in Friesland between the paternal and maternal branches in matters of 
inheritance. 

2 Except in Ditmarschen, which we will discuss later. 

3 Cp. Ficker, Unters. zur Erbfolge, I. pp. 236, 238. 

4 In the matter of herwede, war-gear, to which the swertmac or agnatic kinsman 
succeeds. It should be added however that gerade, the furniture of the house, 
descends exclusively through females (cp. Heusler, Inst. des deutschen Privatrechts). 

5 The vetterschaften of Eastern Holstein may possibly be agnatic, or they may 
be merely artificial groups. It must be noted that they are only mentioned by the 
side of the kindred, and that they appear in a district won back from the Wends. 
It is highly probable that they or their earlier prototypes were formed at the time of 
colonization, in which case they may perhaps be compared to the Teutonic Order 
which undertook the subjugation of the Slav population in Eastern Germany. 

6 Dr Rivers kindly tells me that his forthcoming work, The History of Melanesian 
Society (Cambridge University Press), will contain evidence showing that there is 
a tendency for patrilinear institutions to develop as the result of the interaction of 
peoples. 



2/0 CONCLUSION 

ample evidence from all parts of the world for transition from 
a matrilinear to a partially or wholly patrilinear society, whereas 
evidence for the reverse process is signally lacking, we must 
either deny that the primitive group was capable of holding 
land, or we must fall back on the theory, in favour of which 
other indications are not lacking, that membership of the primitive 
group was determined by descent through females. 

We have not forgotten that Ditmarschen lies within the 
ancestral lands of the Teutons, and that it has a markedly 
agnatic constitution. It is a question whether Ditmarschen 
alone weighs as heavy in the balance as all the old Danish 
provinces. But in any case, is not agnation in this district 
susceptible of a very obvious explanation ? 

In 1559, as we have seen, the Duke issued a law for Dit- 
marschen which admitted daughters to a share in the family 
estate. In the following year the Ditmarschers submitted a 
plea for the repeal of the innovation. In this document they 
urge, not only that the subdivision of the farms led to im- 
poverishment and to the emigration of their sons, but also that 
" the upkeep of the dykes was endangered thereby, for often the 
daughters were wooed [by men] in another parish ; and before 
it could be shown to them and their husbands that the dykes 
and dams needed repair, it might happen that they had been 
completely destroyed 1 ." Is it not possible that the work of con- 



1 Quoted by Sering, p. 142. Another passage in this same Ditmarschen 
document suggests a line of speculation as to one of the causes of the Teutonic 
migrations. There is some evidence that the principles of mother-right were still 
strong among the Teutonic peoples at the time of the migrations (cp. Chadwick, 
Heroic Age, ch. XVI. ; Origin of English Nation, pp. 327 ff.). Could the intrusion of 
patrilinear succession be a contributory cause of the migrations? The document 
just quoted contains an interesting description of the results of forcing a measure 
of cognation on an agnatically organized society : ' ' Not only are the farms (hoven) 
thereby torn from one another, but also the young men are in many ways hindered 
from earning their living, through the many subdivisions and diminutions (of their 
inheritance)... and they have been induced to seek their living and secure themselves 
maintenance elsewhere outside this land, and they will eventually leave the country 
desolate and forsaken." May not the unrest caused by the analogous process, the 
intrusion of an agnatic element into an agricultural community in which descent was 
reckoned through the mother, have been an indirect but none the less potent cause of 
the national migrations, by driving young men to the profession of arms, and thereby 



CONCLUSION 271 

strutting and maintaining the great dykes, the names of which 
show that they were erected by groups of kinsmen 1 , would result 
in an agnatic organization, for the reasons indicated by the 
Ditmarschers themselves in the foregoing passage? For this 
reason Ditmarschen cannot be adduced to prove the existence 
of prehistoric agnatic clans in the Danish peninsula. 

2. The kindred and the cult-community. It is still some- 
what of a mystery why the migrating kindreds, which do show 
a distinct tendency towards agnation, never completed their 
development by evolving into powerful agnatic clans, with clan- 
chiefs for leaders in war. A partial explanation of what we 
may perhaps call the arrested development of the migrating 
kindred may perhaps be sought in the religious history of the 
Teutons. It is obvious that ancestor- worship, so frequently 
found in connection with a clan system, must segregate the 
kinsfolk into organizations either on patrilinear or on matri- 
linear lines. Now we know that the warlike followers of kings 



swelling the king's followings to such an extent that continual conquests became an 
economic necessity ? 

The influence of this unrest would be even more direct in the case of the early 
Viking expeditions by sea, if we are right in refusing to regard them as emigrations 
of whole tribes. So far as our information extends, chronology would bear out this 
suggestion. Our evidence for non-matrilinear succession among the Angli goes 
back at least a century earlier than among the Danes (Chadwick, Origin of English 
Nation, p. 334), and the unrest among them was also earlier. We can trace the 
succession through women in the royal families of Norway and Sweden to a still later 
date. If we might assume the persistence of mother-right among the other classes of 
the community for an equally long period, the intrusion of succession through males 
might have some connection with the earliest Viking unrest. (In some parts of the 
world the nobles are the first to abandon mother-right, as in Ashanti and Dahomey 
(cp. E. Mayer, Deulsche und franzos. Verfassungsgesch. I. p. 419, where it is main- 
tained that father-right became the rule among the upper classes before it was 
introduced among the common people.) It may be remembered that Dudo, William 
of Jumieges and Saxo all attribute the unrest to an excess of population in Scandinavia, 
which they ascribe to polygamy. It is generally agreed that polygamy cannot be the 
cause, but the result of rival claims, both by agnates and cognates, on inheritance 
which had hitherto descended only through the female, would be very similar to the 
supposed effects of polygamy, since it would double the number of heirs to any given 
property. 

1 The basis of organization would probably be found in the already isolated 
groups of inhabitants of the Wurten or mounds, on which single houses or hamlets 
had been perched, prior to the erection of the great dykes. 



2/2 CONCLUSION 

worshipped Odin, the universal and anti-tribal nature of whose 
cult has been recently pointed out by Professor Chad wick 1 . 
As the influence of these warriors predominated among the 
migrating peoples, this cult must have exercised an adverse 
influence on the rise of tribal deities or deified ancestors. 

This explanation can hardly account, however, for the impermanence of 
the Bavarian fara, and the Langobardian genealogia, for these appear to 
have been agricultural groups, not warlike clans. These groups seem to 
have survived the changes and chances of rmich wandering and many wars ; 
and they must have been definite in outline, for they could own land. They 
seem to possess all the elements of permanence, and yet they disappear at 
the very dawn of history. Any attempt to account for their apparently 
sudden extinction must necessarily be little more than idle speculation, but 
is it not possible that the cohesion of each unit was due to a common cult, 
the worship of some ancestor, and that the introduction of Christianity, in 
shattering the cult, also destroyed the principle of cohesion within the clan ? 
The kindreds of the north were not subject to this danger, for ancestor- 
worship is incompatible with thd shifting kindred. 

If we ask whether there are any traces of ancestor-worship among the 
Teutons, the answer is ambiguous but interesting. Such indications as 
exist for a cult of this kind come from Sweden and Denmark. Even here, 
however, there is little enough to enumerate. The Swedish ecclesiastical 
law from Smaland speaks of the 'kindred's cairn' ((ztt& hbgher\ and mentions 
the penalty incurred by strangers who inter a corpse in it 2 . The practice of 
burying the dead in cairns or barrows was as a rule frowned upon by the 
ecclesiastical authorities, who considered it a heathen practice, so that the 
'kindred's cairn' probably dates from pre-Christian times. In Heimskringla. 
we are told how at the end of the heathen period (1019) the messengers of 
St Olaf were refused entrance at four farms one autumn night in Gautland, 
the inhabitants alleging that dlfa-bldt, sacrifice to 'elves,' was proceeding 
within 3 . Thus the sacrifice was offered by each household separately 
within its own four walls. The evidence that connects dlfr, elf, with the 
spirit of a dead man, both in early Scandinavian and in North German 
belief, is sufficient to make the nature of this sacrifice quite clear 4 . 

For Denmark we happen to possess the regulations, dated 1440, for 
a yearly ' kinsmen's festival ' in Ribe, at which the noble families Lange and 
Munk assembled. The regulations provide that a mass is to be said during 



1 Heroic Age, pp. 409, 425. 

2 Sveriges Gamla Lagar, vi. p. no. 

3 Olafs S. helga, ch. 91 (in Magnusson- Morris translation, ch. 92, vol. II. 

PP- 145-7)- 

* Cp. esp. story of Olaf GeirstaSa dlfr, Fornmanna Sogur X. pp. 311-2. The 
evidence is stated in Cambridge Mediteval Hist., vol. n. ch. xv c. 



CONCLUSION 273 

the festival " for all the living and dead of that kinsmen's feast and assembly," 
for which purpose a chaplain is to attend the festival every year 1 . It is at 
least probable that this was not the only instance of the kind in Denmark 2 , 
and that such definite honour to the dead dates back to the pre-Christian 
times. 

There seem to be faint traces of ancestor-worship in Norway, where the 
custom is recorded of drinking toasts in honour of departed ancestors at the 
great festivals 3 . This toast-drinking, however, must have been a matter for 
the individual guest, though it may date back to a time when all the guests 
were kinsmen. In Iceland a belief was prevalent among a few of the settlers, 
that their kinsfolk died into a hill, which was sacred to them 4 , but there is 
no trace of an actual cult. All over Teutonic Europe, however, except in 
England and Iceland, there is abundant evidence for a cult, not of ancestors 
but of the dead, in connection with which the Christian Church met with the 
most obstinate resistance 5 . 

The survival of ancestor-worship in South Sweden and possibly in 
Denmark, combined with the absence of all trace of a cult of the dead 
in Iceland and England, inclines me to think that we should not be far 
wrong if we regarded the evidence as pointing to the existence, among 
prehistoric clans, of an early ancestor-worship, which merged into a mere 
cult of the dead owing to the confusion arising from the intrusion of an 
agnatic element into the groups of kindred. It is obvious that the cult 
of ancestors could not survive in the 'shifting' kindred of historical times. 
Some such theory might explain the strange gulf between the faith of the 
multitude and that of the man who took up, even temporarily, the profession 
of arms, by supposing the latter to be cut off from the common cult of his 
kindred, and consequently adopting that of the royal court. It is worth 
noting that the cult of Odin itself shows features suggesting its affinity with 
the worship of royal ancestors. 

3. Limits of the group. We have so far not considered 
the extent of the primitive Teutonic group of kinsfolk. In 
historical times we find that the circumference of the kindred 
if we may use the term fluctuates between the third degree 
inclusive (in the Netherlands) and the sixth (in Sweden and 
perhaps in France) 8 . Scholars have made great efforts to 

1 Kinch, Ribe Bys Historie, pp. 308-12. 

2 When in Schleswig in 1912 I was informed that certain families of the old 
Schleswig nobility still keep up the custom of a yearly festival among themselves. 

3 Heimskringla, Hdk. S. g6"Sa, ch. 14 [Magnusson-Morris transl., vol. I. p. 165 
(ch. xvi.)]. 

4 Cp. Landndma (Hauksbok), ch. 56, 73, 164 : Hcens. ch. 20; Eyrb. S. ch. n. 
B Cp. Saupe, Indiculus Superstitiomtm (Leipsic, 1891), under headings I to IV. 
8 Cp. p. 193 supra. 

p. 18 



2/4 CONCLUSION 

show either that these variations are not original but are due 
to ecclesiastical influence, or (in some cases) that they do not 
in fact exist, the differences being merely due to variations in 
the mode of reckoning kinship. There is probably some truth 
at any rate in the latter contention, but the disparities cannot be 
wholly explained away, and the fact remains that it is useless to 
seek for the original bounds of the Teutonic kindred. If the 
original group was of the nature of a clan, recognizing kinship 
through the female only, it is easy to account for the divergences 
in estimating the limit of kinship among the Teutonic races, for 
there would be no primitive model to follow. A group organized 
on patrilinear or matrilinear lines will probably include much 
more distant degrees of kinship than a kindred recognizing 
descent through both parents. In the former case the whole 
group will have a name by which its members can distinguish 
one another, and the right to this name, i.e. descent, is the main 
factor determining kinship, rather than the actual degree of 
relationship between any two members of the group. But once 
kinship is reckoned through both sexes, we have to take into 
account the fact that the various branches of a man's kindred 
will no longer share a common name, will in fact no longer be 
related to each other as well as to himself, and the unwieldiness 
of the kindred will increase in proportion to the number of un- 
related groups in it. This circumstance obviously sets a limit 
to the size of the shifting kindred. Thus it is easy to account 
for the divergences among the Teutonic races with regard to the 
extent of the kindred, for the necessity for limiting the group 
would arise naturally, and would depend in the last resort on 
the extent to which men took wives out of their own district. 
Where marriage within the district prevailed to any extent, the 
various branches of the kindred would be likely to be at hand 
and could be readily assembled; where this was not the practice 
the kindred would be unwieldy and its limits would tend to 
shrink 1 . On this theory, Ostergotland and Vestergotland in 
Sweden, with kinship recognized to the sixth degree as late 



1 This refers of course only to the kindred as an effective and cohesive group : for 
purposes of inheritance kinship was frequently acknowledged as far as it could be 
traced. 



CONCLUSION 2/5 

as the 1 3th century, must have been the home of very much 
localized kindreds. 

It has occasionally been stated that while kindreds organized 
on matrilinear or on patrilinear lines are to be found in various 
parts of the world, a cohesive kindred which should reckon kin- 
ship through both male and female not only did not exist, but 
was inherently impossible 1 . It is true that permanently organized 
kindreds on the double basis are unthinkable; but our researches 
have shown that the shifting kindred can persist for hundreds of 
years probably it would not be an over-statement to attribute 
a thousand years of life to it in Schleswig and that in spite of 
its lack of organization, of local habitation and name, it was 
able to exercise no small influence on the history of the nations 
which harboured it. 

We have seen it manifest its solidarity in various ways : it 
appears in law-courts, now to support a kinsman by oath, now 
to pledge wergild or peace, now to sue the slayer or to insist on 
the proper distribution of wergild. Or again, we have seen it 
refuse to submit its internal affairs to judicial control, and this is 
perhaps its most characteristic and most primitive side. We have 
seen it maintain its own poor, and cling through centuries to the 
right to avenge its own wrongs. We may well doubt whether 
agnatic clans could have achieved more towards securing the in- 
dependence of the settled agricultural classes. In Ditmarschen 
we have even caught a glimpse of the last shattered fragment of 
a clan owning and working Jand 2 . 

But it must be admitted that protracted migrations were 
likely to prove fatal to a group for whose continued existence 
it was necessary that the families of all the women who had 
married into it should be close at hand and willing to co-operate 

1 E. Grosse, Die Formen der Familie. Schrader, Reallexikon, s.v. Sippe. 

2 Swart, Fries. Agrarhist., pp. 325 ff., describes an estate owned by a great 
number of persons divided into ' teeler ' or ' teener,' which he considers to be originally 
Geschlechter. It is to be observed that inheritance is only in the direct line. The 
intention of this restriction was obviously to keep the property within the family. 
A more natural means of securing the same end would have been to limit succession 
to agnates, but we have no reason to suppose that the Frisians were acquainted with 
the idea of agnation. 

1 8 2 



2?6 CONCLUSION 

with one another. Moreover the shifting kindreds were totally 
unfitted to serve as the organization of a migrating people. 
Everything would depend on the king and on his following 
of professional warriors, and in prolonged migrations this group 
would tend to increase very greatly at the expense of the disin- 
tegrating kindreds. Yet as long as the latter had not been 
entirely annihilated, they would tend to rally when a final 
settlement was made, the need being more urgent than before 
in view of the increased strength of the comites or nobles. 
Where however the migrating group is not a tribe, but a 
collection of warriors, as in the case of a migration by sea, there 
will be no nucleus round which a kindred can grow up, so that 
England and Iceland will lack the influences which the institu- 
tion brings to bear on the social and political order. Yet even in 
these countries, the laws will still show clear traces of a system 
which had been the keystone of the social fabric before migration. 






APPENDIX I 

THE WERGILD OF A 'HUNDRED OF SILVER' IN ICELAND 

AT the beginning of his essay ' Das hundert silbers ' published 
in 1856', Dietrich observes : "Es besteht also noch das schwanken 
zwischen einem werth von beilaufig 20 und einem von 120 
speciesthalern." No doubt, like others before and after him, 
Dietrich hoped to have put the final interpretation on the term, 
but the fact remains that the words just quoted are as true to-day 
as they were when they were written. 

It may be as well to recapitulate the points which are 
regarded as established. Besides silver, wadmal (homespun) 
was legal tender in ancient Iceland. Both wadmal and silver 
were reckoned in marks and aurar, thus : 

Wadmal. Silver. 

6 ells one eyrir 3 ortugar one eyrir 

8 aurar one mark 8 aurar one mark. 
2^ marks (120 ells) one 'hundred.' 

It is obvious that in the wadmal reckoning the terms eyrir 
(ounce) and mark (8 oz.) are borrowed from the silver reckoning. 

It is agreed that in the year 1000 an eyrir of ' legal ' 
(i.e. alloyed) silver 2 was worth four times as much as an eyrir 
of wadmal. An eyrir of ' burnt ' (i.e. refined) silver was twice as 
valuable as an eyrir of legal silver, or eight times as valuable 
as an eyrir of wadmal. Later the relative values of ' burnt ' 
silver and wadmal fluctuated slightly, but this hardly concerns 
us here. ' Legal ' silver disappeared early in the twelfth century. 



1 Zs. f. d. A. x. pp. 223 240. 

2 ' Old legal silver ' (logsilfr it forna) must be distinguished from ' legal aurar ' 
(logaurar) which refer to wadmal aurar of 6 ells. 



278 APPENDIX I 

Now we come to the point in dispute. What is a ' hundred 
of silver ' ? There are really three possible interpretations : 

(i) The ' hundred ' really refers to the wadmal reckoning, and 
the phrase ' hundred of silver ' means ' the price of a hundred 
ells, paid in silver,' i.e. 2^ wadmal marks or 20 wadmal aur. 
(5 silver aur.). 

(ii) The term ' hundred ' was borrowed from the wadmal 
reckoning, and as it meant 2\ marks in that reckoning, so it 
also means 2^- marks (of silver) in the silver reckoning ; i.e. 
20 silver aur. 

(iii) ' Hundred ' is merely a numerical term in either reckoning, 
and in the silver reckoning it means 120 aurar. Therefore the 
silver table should be completed by: '15 marks (120 aur,) one 
hundred.' 

The first view is really held by Schive, in his Norges 
Mynter i middelalderen, published in 1865 : " HundraS silfrs = 2\ 
marks or 20 aurar. The expression is in fact elliptical and 
signifies 100 ells of wadmal, that is a long hundred or 120 ells, 
reckoned in silver in 6-ell aurar ; thus 20 aurar of silver = 6 x 20 
ells of wadmal 1 ." But we know that 5 aurar of silver = 20 aurar 
of wadmal or 6 x 20 ells ; so the logical conclusion of this 
statement would be : a hundred of silver =120 ells = 20 aurar of 
wadmal = 5 aurar of silver. Fritzner's Dictionary follows Schive: 
" hundraft silfrs, i.e. 120 ells of wadmal to be paid in silver at such a 
rate that i eyrir of silver is equal to 6 ells of wadmal." Zoega's 
Old Icelandic Dictionary, published in 1910, seems to follow 
Fritzner, but it indicates by a query that the question is still 
open : " hundratf silfrs ? the silver value of 120 ells (= 20 ounces)." 

This theory can be seen to be untenable directly we follow it 
to its logical conclusion, that a hundred of silver = 2\ marks 
of wadmal. For in this case the wergild for slaying would 
actually be less than the 3-mark (wadmal) fine for all sorts 
of breaches of the law, and would be less than half the amount 
of rtttr, a fine payable for striking, wounding or insulting another. 
It will also be seen that this theory finds no support in the 
one passage which throws any light on the question, so that 
it may fairly be dismissed. 

1 p. xxii. 



APPENDIX I 279 

The second view (hundred of silver = 20 silver aurar) is that 
of Cleasby-Vigfiisson's dictionary, and has since been urged by 
Arnljotr Qlafsson in I9O4 1 . The main reason for it has been 
forcibly put by Professor Finnur Jonsson in an appendix to his 
German edition of Njalssaga in 1908*, and by Professor Bjorn 
Olsen, in the 1910 Year-Book of the Icelandic Archaeological 
Society 3 , as well as in the periodical Skirnir of the same year 4 . 
The third view (hundred of silver = 120 silver aurar) has been 
held by various earlier Danish and German scholars, but its only 
modern upholder is Dr Valtyr Gut5mundsson, who has urged 
it in two essays published in 1893 and 1909 respectively 5 . The 
two theories can be considered together, for they both turn 
on the same passage in the Icelandic laws, a little paragraph 
entitled Frd silfrgang, which we have in two recensions. The 
first (Komingsbdk, ed. Finsen, I b. 192) runs thus : 

" In that time when Christianity came out to Iceland silver 
was paid here in all large debts ' pale ' silver " (i.e. alloyed or 
' legal ' silver)... "fiat var iafn micit fe callat. c. silfrs. sem iiii 
hundroft oc xx. alna vaSmala. oc varft pa at halfri more vaftmala 
eyrir" 

The supporters of (ii) read this passage thus : " This was 
reckoned an equal amount of money : one hundred of silver 
and four hundred [and 20] ells of wadmal ; and so an eyrir 
(of silver) is equal to half a mark of wadmal." Professor Finnur 
J6nsson regards the ' and 20 ' as an interpolation, while 
Professor Olsen considers it to be an ' extra ' sum, thrown in 
when large payments in wadmal were made at the rate of an 
inch per ell. Their justification is found in the other recension 
of the passage (Skdlholtsb6k, p. 462), where the ' and 20 ' is 
omitted. We thus get the following result : 



1 Um logaura og silfurgang fyrrum a Islandi. Timarit kins hlenzka B6kmcntaf(- 
lags, xxv. pp. i 26. 

2 Altnord. Saga-Bibliothek, Brennu-Njdlssaga, pp. 422-4. 

8 Um hina fornu fslensku alin, Arb6k kins islenzka fornlei) "aft 'lags, 1910 (Reykjavik, 
1911). 

* Um silfurvei-S og va'Sma'lsver'S, Skirnir, 1910, pp. i 18. 

8 Manngjold-hundra'5, Germanische Abhandl. zum LXX. Gebiirtslag K. von 
Maurers, Gottingen, 1893, pp. 523 ff., and in Festskrift til L. A. Wimmer, Copen- 
hagen, 1909, pp. 5563. 



28O APPENDIX I 

A hundred of silver = 4 hundreds, i.e. 480 ells, of wadmal. 
= 4 times 2 J marks of wadmal. 

A mark of silver = 4 times a wadmal mark. 

Therefore a hundred of silver = 2\ marks (20 aur.) of silver. 

(iii) It must be admitted that the third theory reads the 
above passage in a somewhat forced way. We are to take the 
' IIII hundroS oc xx alna vaSmala ' not as 4 hundred and 20 ells, 
but as ' 20 and 4 hundreds of ells,' i.e. (24 x 120) 2880 ells. 

On this plan a hundred of silver = 24 hundreds of wadmal, 
i.e. (24 x 2^) = 60 marks of wadmal. 

One mark of silver = 4 marks of wadmal. 

Therefore 60 marks of wadmal = 15 marks (i 20 aurar) of silver. 

The other recension of this passage runs thus : 

" This was considered an equal amount of money : C. of silver 
and iiij. c. of wadmal. Then half a mark (4 aur.) of wadmal 
is equal to an eyrir of silver." 

Dr GuSmundsson reads this iiij. c. as referring to wadmal 
aurar (not ells as in the other recension). Thus he gets the 
result : 

A hundred of silver = 4 x 120 aurar of wadmal. 

Therefore a hundred of silver = 120 aurar of silver. 

We should add that in his later essay Dr Valtyr Gut5mundsson 
then proceeds to throw doubt on the value and accuracy of the 
whole passage, and in both contends that the wergild of a 
hundred of silver was paid in burnt silver. We will defer the 
discussion of this point and return to our main problem. 

It is obvious that both theories are perfectly tenable as 
interpretations of the actual words of Gragas, though it would 
seem that (ii) has the advantage in this respect, as being a 
simpler reading. On the other hand it can be fairly urged 
for (iii) that it is equivalent to the wergild of Baugatal, and 
more nearly approaches the amounts of foreign wergilds. These 
are however points on which I cannot personally lay much stress, 
and were this all, there would seem to me to be no reason 
for deciding in favour of the one or the other. But fortunately 
there is another method of judging of their relative probability. 

In comparing the wergilds of Saga times with those of 
the Sturlung period, it is essential to remember that much more 



APPENDIX I 28l 

distinction between persons was made in the later period 1 . It 
may also be regarded as beyond dispute that in the Sturlung 
times wealth had been collected into comparatively few hands. 
For these reasons the wergilds of chiefs in Sturlung times must 
be put out of court in any comparison between the two periods. 
New the smallest wergild paid for any person in the Sturlung 
cycle of Sagas (for BoSvarr li'tilskeyta, Sturl. i. p. 2IO 2 , and 
to Hneitir's widow, I. p. 15) was 12 hundreds of wadmal = 1440 
ells. But Thorgils Oddason claims 30 hundreds of wadmal for 
Hneitir (I. p. 16) and Hneitir had received a similar sum, 3600 
ells 8 , for his nephew Thorsteinn (i. p. 13). For Bjarni Arnason 
20 hundreds, i.e. 2400 ells, are paid (i. p. 386). Now on theory 
(ii) a ' hundred of silver,' the normal wergild of the preceding 
period, contained 480 ells : theory (iii) would make it 2880 ells. 
The latter, it will be seen, corresponds very fairly to the smaller 
Sturlung wergilds, but before the supporters of the previous 
theory can persuade us that 480 ells was a reasonable wergild 
in 1000, while the minimum wergild for a small farmer in 1118 
was 1440 ells, they will need to adduce some^ntirely new and 
unsuspected evidence for far-reaching economic changes in 
Iceland, or for a great increase in the value set on human life. 
Of the latter suggestion Sturlunga Saga itself is surely the best 
refutation. 

But if we apply the results of Professor Olsen's illuminating 
paper ' Um silfurverS og vaSmalsverS ' to the wergild problem, 
the weakness of the 2O-aurar theory is even more strikingly 
apparent. Professor Olsen shows conclusively that at the time 
of the introduction of Ulflj6t's law in 930, 6 ells of wadmal were 
actually equal in value to the eyrir of alloyed silver. He 
explains this state of things by the conditions of the newly- 
settled country, where, as in other new countries, the precious 
metals had a comparatively low purchasing power. Now in this 
case, the wergild of 20 silver aurar would be equal to 20 aurar of 
wadmal ; i.e. to 1 20 ells. Thus this theory is open to the same 



1 The largest wergild in Sturl., i hundred hundreds, is 24 times as much as the 
smallest 10 hundred. 

2 The edition quoted is that of Kalund. 

3 I.e. 10 hundred 3-ell aurar. 



282 APPENDIX I 

overwhelming objection as (i) viz. the rettr of 48 aurar, for 
a blow or an insult, would in 930 be more than twice as much as 
a normal wergild. The latter would even be exceeded by the 
3-mark fine (24 wadmal aurar) exacted for quite trivial breaches 
of the law. 

We must thus conclude that the wergild of a 'hundred of 
silver ' is equivalent to 1 20 aurar. In 930 this would be 
(120 x 6=) 720 ells. As wadmal began to fall rapidly in value 
the recipients would insist on being paid in silver, and hence the 
stipulation constantly met with in the Sagas for a hundred 
of silver. By the year 1000, when an eyrir of alloyed silver was 
four times as valuable as .an eyrir of wadmal, a wergild of 120 
silver aurar would, as we have seen, amount to 2880 ells, or about 
the amount of the smaller Sturlunga wergilds. 

There is much that is tempting about DrValtyr GuSmundsson's 
plea for reckoning wergilds in burnt silver, whereby a closer 
correspondence with the amounts of Continental wergilds is 
attained. But it is highly probable that Baugatal's 120 silver 
aurar, which had become a traditional wergild, may date back to 
a time when such a sum was really equal in value to the larger 
amounts of other Continental wergilds 1 . Moreover there is a 
difficulty in reconciling the burnt silver theory with the explicit 
statement in Gragas that payments may be made in alloyed 
silver 2 . Even if one surmounts this difficulty, it seems that one 
has to make another assumption, namely that Sturlunga always 
refers to aurar (of three ells) even where that word is not 
expressly mentioned. Now Sturl. itself equates ' 2 hundred 
hundreds ' (of ells) with ' 80 hundreds of 3-ell aurar V so that 



1 Professor Olsen, in his paper Um silfurverft etc. quotes Holmboe, Norges Mfnter, 
p. viii, as observing that it is a common phenomenon that traditional sums for fines etc. 
have been adhered to without regard to the fluctuations in actual value that the sum 
undergoes in the course of years. 

3 Dr Gu$mundsson, S01vkursen ved ar 1000 (Festskr. til IVimmer, 1909), p. 62, 
throws doubt on this passage for various reasons into which we need not enter here. 
But surely he is unjust to the text when he refuses credence to its statement that base 
alloyed silver was legal tender in the year 1000, on the ground that Norwegian anus 
of that date are of refined silver. The passage does not say that alloyed silver 
was used for minting coins in Norway, only that it was legal tender in Iceland. 

* Where Sturla demands the same sum that Haflifii got. 



APPENDIX I 283 

here at least it means ells not aurar where it mentions neither. 
Further arguments against the burnt silver theory have been 
adduced by Professor Olsen in the above-mentioned paper 
(pp. 10 f.). The significance of the change from a silver to a 
wadmal reckoning must also be borne in mind. If wergilds had 
been reckoned in burnt silver from the beginning, there would 
have been no particular reason to abandon a silver reckoning for 
a wadmal one at the beginning of the I2th century. But it was 
just at this time that the supply of the old alloyed silver began 
to run short. It is surely not a coincidence that the abandonment 
of the old silver currency synchronized with the adoption of a 
wadmal reckoning in wergilds. 



APPENDIX II 

I. Norway Deed of reconciliation in a slaying-suit. 
17 April 1348. [From Norske Samlinger, III. Christiania, 
1835, PP. 3S4-5-] 

"Ollum monnum )>aeim sem )>aettae bref sea aeSr hoyrae sendee Symon 
Gudthormsson. Petasr a Vpsalum. Ifuaer j Oom. Olafuaer Hakonaerson. 
Sighurdr a Bo. ok Sigurdhr a Lokine. quediae guds ok sinas kunnigt ge- 
rande att a haelghaethorsdags aeftan...varo mer a Fylkis-haughi hia. saam 
ok hoyrdom aa att Arne Odzson saettis vidaer Erling Ormssyne medr 
handzsale firis }>aett att ban hafde vordett att skada Ogmundi Pipprunghi 
vfirir syniu broder Erlings. medr )>aeim hastte att han faek Erlinge halftt fimttae 
oyris boll iaerdaer j Vraestodum asr liggasr i Stumfnae-dale till fulre aeighu 
ok alz afraedis. var ok )>aett skyllmale }>eirae j fyrirsogdu handszale. att Arne 
Odzson skall nu allungis sattasr vera vidaer Erlingh vm fyrnaemtt aftak 
Ogmunda brodr Erlings, sva saem Arnne haefde aldri brottett j>aett vaerk 
motte Erlinghi ok J>aen peeirae saem J>aennae satmalae ryfuaer aeftr rofzsmen till 
faer skal slika fyrir suara saem gridnidinghun ligaer vidaer aatt rettom laghom. 
aeffter Jjaett gaf Arnne Erlinghe aeinae hafzsaeldo smors." 

" To all men who see or hear this letter : Simon Guthormsson, Peter at 
Upsolum, Iver at Umb(P) 1 , Olaf Hakonarson, Sigurd at Bo and Sigurd 
at Logr 2 send the greetings of God and of themselves, making known that 
on the eve of Maundy Thursday we were present at Fylkis-haug : saw and 
listened while Arni Oddsson came to terms with Erling Ormsson with clasp 
of hands 3 , for having been so unfortunate as to kill, by misadventure, 
Ogmund Piprung, Erling's brother ; in this wise, that he gave Erling a 
strip of land taxed at 4^ aurar at Orestadir, which lies in Stufnardal 4 , [to 
be] his full possession and at his complete disposal ; and it was their agree- 
ment upon the aforesaid hand-clasp that Arni Oddsson shall now be entirely 
at peace with Erling as regards the above-mentioned slaying 5 of Ogmund 
Erling's brother, just as if Arni had never committed that deed against 
Erling ; and whichever of them infringes these terms of peace, or induces 
others to infringe them, shall be liable to the same penalties as those to 
which the nithing who breaks truce is legally liable. Thereafter Arni gave 
Erling a half-cask of butter." 



1 I cannot trace this name in the district with which this document deals. Umba 
occurs as a place-name in N. Norway. 

1 There is a place-name Logr in Gudbrandsdal. 

3 As at the conclusion of a bargain. 

4 There is a Stufnardal in Heinafylki, west of Mjosen. 

5 Lit. ' removal.' 



APPENDIX II 285 

II. Norway Plea to the king concerning wergild, 1585. 

[From Norske Herredags Dombfger, udg. f. d. norske hist. 
Kildestriftfond. I. Raekke, Bd III (Tillaeg), p. 223.] 

A plea to the king from Thorold Asmundsen of Oddernes sogn in 
Manddals Lehn. 

"...Aszmund Thorgiersen, wden skyld och br^de bleff ihielslagen aff 
An.und Endreszen j sit egett bus, for huilcken gierning hand [Thorold] med 
sine br^dre och wenner fick Amund fangen, f0r end hand fick kongens dag i 
thend sag, och antuorde hannem foggitten, som thend tiid wor Hans Borre 
och hand siiden wden hans minde slap hannem aff fengsell. att gaa ledig 
och 10sz, huor hand midler thiid er d^d, och att hand och hans br0dre ther 
effther ere worden forligt med for ne Amund Endreszens arffuinge, saa the 

skulle haffue af thennom for theris faders d0d 60 daller, effther thet 

forligelsze breff, thennom ther om er emellom gangen, huor aff hoesz cant- 
zelliet findis en copie, siden haffuer laugmanden d0mbt Amund Endreszen 
wdsleger, och hans godtz vnder kongen, huoroffuer hand och hans s0skinde 
jntett fick aff thet thennom loffuit wor. Begierendis therefore... att kon. 
matt, naadigst for Guds skyld will ansehe hans och hans br0deris leylighed 
och betencke thennom med noggit effther hans matt, egen guode th0cke 
for theris faders dod, efftherthj att drabernis boe och godtz er optagen, kon. 
matts. thilhende." 

Thorold Asmundsen complains that "Asmund Thorgeirsen (his father) 
was killed sackless and innocent of offence in his own house by Amund 
Endressen, for which deed he, with his brothers and friends, made a 
prisoner of Amund before he got the king's judgment in the case, and 
handed him over to the Provost (fogt) who at that time was Hans Borre ; 
who later, without his approval, let him [Amund] out of prison, to go free, 
in which freedom he in the meantime died ; and that he [Thorold] and his 
brothers thereupon made terms with Amund Endressen's heirs, in such 
fashion that they should have from them 60 florins for their father's death... 
according to that deed of reconciliation which passed between them in the 
matter, and of which a copy is to be found in the chancery. Since then the 
Lagmand has adjudged Amund Endressen to have been an outlaw, and has 
awarded his goods to the king, whereby he [Thorold] and his brothers 
and sisters got nothing of what was promised them. He therefore begs... 
that His Royal Highness will graciously, for God's sake, consider his 
position and that of his brothers, and grant them a consideration [in cash] 
for their father's death, according to his Majesty's own good judgment, 
seeing that the slayer's farm and goods are confiscated for the behoof of 
His Majesty." 



286 APPENDIX II 



III. Denmark, 1513 The Bilde-Hak Orfejde. 

[From Danske Magazin, III Raekke, Bd II. p. 148.] 

"Vii efftir ne Steen Bilde paa Liwngesgard, Nielss Hog paa Esker, Tyge 
Krabbe paa Brustrope, Axell Brade paa Krogholm, riddere, Hanss Bilde 
paa Egede, Knud Bilde, hoffuitzman paa Gladfaxe, Johan Oxe paa Nielstrop 
oc Holgerd Gregerss^n paa Torup, som aff waben ere, gi0re alle vittherlicht 
met thette wortt opne breff, at wii haffue loffuit oc tilsagd, oc met thette 
wortt opne breff loffue oc tilsige erlig oc welbyrdug mend Her Henrich 
Krummedige, Knud Goye oc Anderss Hack paa welbyrdug mandz Anderss 
Bildes vegne, then bod, wander oc h0ffskhed for erlig oc welbyrdug mandz 
Nielss Hackes d0d, tess wer for" 6 Anderss Bilde ihiell slo, eth twsind marck 
vt at giffue i Lund inden ste. Mortens dag nw nest komendes, thre lester 
korn iordegodz, som gott er for sith landgilde, vd at legges i Skone, Sieland 
oc i Lolland inden Poske nw nest komendes. Ith twsend Marck at ste. 
Micaels dag ther nest efftir komendes i Lund vd at legges, oc saa halffannet 
twsende marck ocsaa vd at legges 5 Lund ste. Michelss dag eth aar ther 
nest efftir komendes, oc ther till eth clenodie effter sex theres venners 
seyelse paa begge sidher. Thii beplichte vii oss oc wore arffuinge at betalle 
oc vdlegge for" 6 Her Heinrich Krummedige, Knud Goye oc Anderss Hack, 
thennom eller theres arffuinge, paa for ne Nielss Hackes borns vegne for" 6 
swm penninge oc godz inden for" 6 thiidher som forschreffuit staar, vthen allt 
hinder genseyelse eller hielperede i nogre mode 1 ." 



1 Translated in text, p. 89 supra. 






APPENDIX II 287 

IV. Denmark, 1542 Wergild for Niels Mogenssen. 
[From Danske Magazin, III Raekke, Bd IV (1854), p. 262.] 

" Vii epter ne Erich Schram till Tielle Eyller L0cky till Torup Oluff Glob 
till Vellumgaard Kiendess och g0er witterlicktt for Alle att wi haffue lofuett 
oc tilsagdtt Och mett thette wort obne breff loffue oc tilsige Erlige oc 
welbyrdige mendtt Jacop Hardenbaerigh till Sandhollt Eyler Hardenbaergh 
till Matterop Christopher Johansson til Drenderop Anderss Johanssen till 
Faabitz Hartwiig Tammessen til Palsgaardtt Christopher Rosenkrandtz 
till Skierne Oc Christopher Rosenkrandtz till Heffringholm, Huilke for"* 
Riddermendtz Szom haffue loffuet oc fullsagdtt for Erlig oc welbyrdiigh 
Swendtt Peter St0ggy till for ne Heffrindtholm For then Swm gwldtt oc 
pendinge Szom handt vdttgiffue skall till Nielss Maagenssens eptermaalss- 
mendt huess Siell guudt haffue Szom for for ne Peder St0ggy dess werre y 
hielsloo Szom aer fempten hwndritt marc y goidt mynt oc tuende klenody 
huertt Szaa gott szom ett hwndritt gyldene thette for ne guldtt och pendinge 
tilsige wii forbeneffhde for!0fftings mendtt oc bekiende thet paa wor gode 
troff oc loffue att Per St0ggy thette for" 6 vbr0deligen wiidt ordt oc alticle 
rider (sic) oc frunder vden [al hijnder oc hielpe Reede vdttgiffue Schall 
Som thett breff indeholder oc vdtwisser [som] for" 6 gode Mendt for ne Nielss 
Maagensses eptermaalssmendt loffuet oc tilsagdtt haffuer oc schall handt 
holde thennom oc theris arffuinge thett vden aldt Skade kost oc tasrendt 
y alle maade. Att Szaa ij Sandhudt aer tr[0cker wjii waare Ingseygle neden 
for thette wortt obne breff." 

"We whose names follow, Erich Schram of Tielle, Eiler Lykke of Torup, 
Oluf Glob of Vellumgaard, acknowledge and make known to all that we have 
promised and assured, and with this our open letter do promise and assure 
the honourable and well-born gentlemen, Jacob Hardenberg of Sandholt, 
Eiler Hardenberg of Matterup, Christopher Johanssen of Denderup, Anders 
Johanssen of Faabitz, Hartwrg Tammesen of Palsgaard, Christopher Rosen- 
krands of Skjerne and Christopher Rosenkrands of Hevringholm ; these 
knights just mentioned having (in their turn) promised to stand surety and 
bail on behalf of the honourable and well-born squire Peter St0ggy of the 
aforesaid Hevringholm for that sum of gold and money which he shall pay to 
the plaintiffs in the suit concerning the slaying of Niels Mogenssen (whose 
soul may God keep), whom the aforesaid Peter St0ggy unfortunately slew; 
namely fifteen hundred marks in good coin and two jewels each of the value 
of a hundred gulden. This gold and money aforesaid we the aforesaid 
sureties guarantee, and we declare on our good faith and word, that Per St0ggy 
will pay the aforesaid faithfully, without fail, delay or excuse... 1 in such man- 
ner as the deed sets forth and shows, wherein the aforesaid gentlemen have 
given promise and pledge to the plaintiffs of the suit for Niels Mogenssen ; 
and he shall compensate them and their heirs for all damage or incidental 
expenses of all kinds. In witness of the truth whereof, we have put our seals 
at the foot of this our open letter 2 ." 



1 rider oc frunder, (? possibly riddere oc frunde). 

2 I cannot help thinking that in this copy of the deed (probably several were 
made), the scribe must have omitted some words or more probably a whole line, 
such as " a lull true and irrevocable sone and orfejde" which the first three 
persons "promise and assure." Such a line would fit in after the first mention 
of Hevringholm. In this case the "we the aforesaid sureties" would refer to Jacob 
Hardenberg etc. 



288 APPENDIX II 






V. Denmark, 1602 Juul-Skeel Orfejde. 

[From Danske Magazin, I Raekke, 3 Bd, Cop. 1747, pp. 318 ff.] 

"Wii effterskrevne Ove Juel til Meilgaard paa mine egne og min SI. 
Br0ders-B0rns Vegne, som ieg er ret Verge fore, saa og paa mine S0stere, 
som ieg og er ret Verge fore, deres Vegne, Iver Juel til Villestrup, Mouritz 
Stygge til Holbekgaard, Frue Anne Stygge, Salig Niels Juels til Kongeslev- 
lund, hendes Lav- Verge, Christopher Mitelsen til Lundbek, Hertvig Kaas 
til H0rupgaard, gi0r alle vitterligt og kiendes med dette vort obne Brev, 
at som Erlig og Velbr. Mand Albret Skeel til Jungergaardt haver (disverre) 
drebt og ihielslaget vores kiaere Hosbond, Broder og Svoger, og Blods- 
Forvandt Erlige og Velbr. Mand Niels Juel til Kongeslevlund, for hvilket 
hand nu var indstevnet for kongelig Maj. og meenige Danmarks Riges 
Raad : Da epterdi hans Slegt, Biurd og Blodtz-Forvante, Svoger og Venner 
baade nu og tit og ofte tilforne paa hans Vegne hos os haver anlanget, at vi 
for deris og hans Hustru og B0rns Skyld, som og er voris Slegt, Biurd og 
Blods-Forvante, ville afstaa, hvis Tiltale og Rettergang vi kunde have til 
hannem for samme Saeg, da efter deres flittige Begiering og Underhandling, 
og for deres og hans Hustru, B0rns og deres Slegt og Venners Skyld, have vi 
samme Stefning og Tiltale afstaaet...da have vi nu der imod paa forneffnte 
Niels Juels effterladende Hustru, hendes B0rns og Arvingers Vegne, som 
paa vores Egne Vegne, for os og vores Slegt og Byrd, paa Faederne og 
M0derne Side, for baade f0de og u-f0de, opreist forneffnte Albret Skeel, 
og giort Hannem og nu med dette Vort Obne Brev giore Hannem og Hans 
B0rn, Slegt og Byrd, baade paa Faederne og M0derne, baade f0d og uf0d, en 
trog veragtige uigienkallendes og uryggelige Sone og Aarfejde.... 

Dis til ydermere Vidnisbyrd... haver vi med forneffnte Niels Juels Hustru, 
Hengt vore Zigneter her neden fore, og underskrevet med voris Egne 
Haender, og Venligen tilbeder med os at besegle og underskrive, Erlige 
og Velbyrdige Maend, Christen Holch til H0ygaard, H0vitzmand paa Hald, 
Niels Stygge til S0egaard, Thomas Malthisen til Tanderup, Erich H0g til 
Klarupgaard, Erich Lunge til Skovgaard, og Frantz Juel til Palstrup. Actum 
Viborg d. 20 dag Februarii I6O2 1 ." 



1 Translated, p. 94 supra. 



APPENDIX II 289 

VI. Schleswig Court record from the town of Hadersleben, 

., 1693. 



[From Schleswig, Staatsarchiv, Acta C. XIX. 5, No. 7.] 

"Es erscheinet Niss Iferssen aus friedtstede, nomine fr. magdalenen 
Classen, vnd dessen Sohns bans Classen, producieret einen Vergleich mit 
S. Marren 1 Olufs nachgelassenen freunden wegen der Busse welches quan- 
tum laut ermelten Vergleichs auff 154 mark sich erstrecket, Und haben die 
freunde sich nochmals erkleret, bey dem Vergleich zu bleiben, ausgenommen 
Soren Sorensen in Falstrup, welcher copiam der von den Sandmennern ab- 
gesprochener Sententz begehret, von diesen Geldern aber nichts participieren 
wollen, Niss Ifersen aber hat die Gelder versiegelt in Gericht deponiret, und 
ist der terminus distributionis der gelder auff den 18 Feb. a. c. angesetzet, 
an welchem die angegebene freunde, so sich nochmahlen gerichtlich erkleret, 
bey diesem Contract zu verbleiben, und weiter keine prcetentiones zu machen, 
auch ratione graduum mit einander friedlich gewesen ohn weiterer citation 
die gelder empfangen sollen. 

Specification Seligen Marren Olufs angegebenen freunden und in welchem 
gradu Ein jedweder begrieffen wie folget. 

Von denen veraccordirten 154 Mark gehen ab an Unkosten 4 Mk. 
bleiben 150 Mk. 

darvon bekommen 4 persohnen in Andern gradu a 8 Mk. 32 Mk. 
20 persohnen in dritten gradu a 4 Mk. 80 Mk. 
19 persohnen in 4 te " gradu a 2 Mk. 38 Mk. 

150 Mk. 

gradus 

234 
Bertelt Hansen in hiemdrup ......... 2 

hat 3 So'hne 
Laur ..................... 3 

Andreass .................. 3 

Siren ..................... 3 

Soren Bertelsen Sohn nahmens Bertelt ...... 4 

David Kuster in Sommerstede ......... 2 

hat 4 Sohne 
der erste .................. 3 

der ander .................. 3 

der dritte .................. 3 

der vierdte .................. 3 

3 Sohns kinder 



1 Marren = Marien. 

P. 19 



290 



APPENDIX II 



gradus 

234 
erste 4 

ander 4 

dritte 4 

David Davidsen aus Riepen 2 

2 Sohne 

erste 3 

ander 3 

Erich Davidsen in Rincoping 2 

2 Sohne 
erste ... ... ... ... ... ... ... 3 

ander 3 

Hans Hansen in Tystrup 3 

2 Sohne 

erste 4 

ander 4 

Michel Paulsen in Stepping 3 

2 Sohne 

erste 4 

ander 4 

Jens Paullsen 3 

hat 2 Sohne 

der erste 4 

der ander 4 

Hanss Paulsen 3 

Bertelt Paulsen, welcher in Engelland ist ... 3 

Ein Sohn 4 

David hansen in Segeling 3 

Ein Sohn ... ... ... ... ... ... 4 

Andreas Persen in Faurwra 3 

Simon Peersen in Faurwra 3 

hat 2 Sohne 

der erste 4 

der ander 4 

Peter Nissen in Faurwra 4 

Traulss Jenssen in Bayschau (?) hat 2 Sohne, 
welche wegen ihrer Mutter participieren 

der erste 4 

der ander 4 

Matz Mortensen in hiendrup wegen seines Sohns, 

welcher in 1 ... ... ... ... ... 4 

Laurs Petersen in Jarup 3 

dessen Sohn knudt Laursen 4 



1 There is a lacuna here in the original. 



APPENDIX II 291 

VII. Schleswig-Holstein The Ranzow-Brockdorf 
Urfehde, 1588. 

[Printed in J. F. Noodt: Beytrdge zur Erlauterung der Civil- 
Kir chen und Gelehrten- Historic der Hertzogthiimer Schleswig und 
Hollstein. Hamburg 1744, p. 91.] 

Edle, Ehrenveste und Ehrbare, freundliche, liebe Ohme, Schwagere und 
gute Freunde. Nachdem ungefehrlich vor sieben oder acht Jahren auf der 
Fiirstlichen Huldigung zu Odensehe euer Gottseeliger geliebter Oheim, 
Bruder und Freund, Gerd Rantzow, und unser freundlicher lieber Bruder und 
Schwager Friderich Brocktorffen, zur Uneinigkeit und zur Wehr gerathen 
wodurch gedachter Gerd Rantzow von unserm Bruder, Vetter und Schwager 
Friderich Brocktorffen, zu leider entleibet worden, und also er Frederich 
Brock torff, der gantzen seiner angehorigen Freundschaft zu Ehren, auch 
Verhiitung mehrers Unheils und Weiterung, vieler guten Leute Gemeinschaft 
meiden, auch sich eine Zeit lang ausserhalb Landes begeben und enthalten 
mussen. Zudeme nicht allein auf unser seiner Freundschaft emsiges Bitten 
und vielfaltig Anhalten, besondern auch durch Weiland des Durchleuch- 
tigsten, Grossmachtigen Fiirsten und Herrn, Friderich des Andern, zu 
Dennemarcken, Norwegen, der Wenden und Gothen Konigs, unsers allerseits 
gnadigsten Herrn, Vorschriften und dazu verordneten vornehmen Rathe und 
Diener fleissige Unterhandlung, es bis daher zu keiner Aussohnung gereichen 
noch kommen konnen : Und aber durch sonderliche Schickung Gottes des 
Allmachtigen, weil wirs demselbigen allewege, in unserm Gebete getreulich 
befohlen, und dann auch unser der Freundschaft vielfaltiges Suchen, es 
nunmehro dahin befordert, woferne nach altem dieser Fiirstenthiime wohl- 
hergebrachten Gebrauch und Gewohnheit, durch 36 Personen von Adel, als 
12 Mannern, 12 Frauen, zwolf Jungfrauen, mit gebiihrlicher Abbitte eine 
christliche Aussohne offentlich ins Werck gerichtet und angestellet, auch in 
die Ehre Gottes zu dem Armen-Hause binnen dem Kiel, die vieff huse 
genandt, 1000 Marck Liibsch gegeben und iiberreicht wurde, dass alsdann 
dadurch aller Groll, Hass und Wiederwillen, wegen beriihrtes klaglichen 
und hochbetriibten Unfalls gedampfet, beigelegt und vertragen sein solle. 
Demnach erscheinen wir 36 Personen allhie obangeregter maasse, und 
dancken erstlich Gott dem Allmachtigen, darnachst euch und der gantzen 
Freundschaft, dass es zu diesen christlichen billigen Wegen und Mitteln 
gerathen, bitten auch dienst- und fleissig, ihr wollet aus chi stlicher Liebe 
dem Allmachtigen zu Lobe, auch uns und unserer gantzen Freundschaft zu 
Ehren und Gefallen, gedachten unserm Bruder und Freunde Frederichen 
Brocktorff zugefugten Unfal, von Hertzen verzeihen und vergeben, dessen 
inskiinftige weder mit Worten noch Werken feindseliger Weise nicht 
gewehren noch gedencken. Inmassen auch wir, wann uns solches von eurer 
Seiten begegnet und wiederfahren, zu thun gleicherstalt gemeinet, damit 
also die Gemiither beederseits Freundschaft wiederum christlich versohnet 
und einer vom andern nicht anders, als alle Ehre, Freundschaft und geneigten 

19 2 



292 



APPENDIX II 



guten Willen inskiinftige zu erwarten haben mdge, wie wir auch darob seyn, 
und befordern wollen, dass ab angeregte 1000 Marck Liibisch, dem genandten 
Armenhause zum Kiel erleget werden sollen. Solches um euch und der 
gantzen Freundschaft nach aller Moglichkeit zu verdienen, erkennen wir uns 
hiedurch schuldig, wollen uns auch solches jederzeit mit hochstem Fleiss 
getreulich angelegen und befohlen seyn lassen, mit erbieten, da sich in kiinft- 
igen Zeiten, das der Allmachtige gnadig verhiiten wolle, dergleichen Fall 
ihrer Seiten zutragen mochte, sich gleichfals aller christlichen Billigkeit und 
auf ebenmassigen Wegen finden zu lassen. 

Frauen. Apollonia Brocktorffen 



zu Barn. 
Oelgart von Qualen zu 

Koselau. 
Catharina Brocktorffen, 

Friederichs Frau. 
Anna Rantzow, Glaus 

Frau. 
Anna Brocktorffen, Pauls 

Frau. 
Drude von Ahlefeld, 

Christophs Frau. 

Jungfrauen. Catharina Brocktorffs, 

Friderichs Tochter 
Lucia von Qualen, Josias 

Tochter. 
Anna Brocktorff, Pauls 

Tochter. 
Christina von Hagen, 

Henneken Tochter. 
Ide von Ahlefeld, Wulffs 

Tochter. 
Oelgard von Qualen, 

Josias Tochter. 

Junckere. Detlef Brocktorffzu Barn. 
Hans Brocktorff zu Ro- 

senhave. 
Paul Brocktorff zu Eck- 

ernforde. 

Friderich Brocktorff. 
Detlef Brocktorff zu 

Windebiie. 
Otto von Qualen zur 

Noer. 



Ahlheit von Ahlefeld, 

Claus Frau. 
Dorothea Wensin, Lau- 

rentz Frau. 
Anna Sehestedten, Otten 

Frau. 
Margarethe Rantzow, 

Claus Frau. 
Ahlheit von Bockwolden, 

Jochims Frau. 
Florentina von der 

Wisch, Claus Frau. 

Ida Brocktorffen, Pauls 
Tochter. 

Abel von der Wisch, 
Claus Tochter. 

Anna Brocktorffen, Jo- 
chims Tochter. 

Barthe von Ahlefeld, 
Jiirgens Tochter. 

Catharina von der Wish, 
Otten Tochter. 

Anna Rantzowen, Jacobs 
Tochter. 

Otto von Qualen und 
Benedictus von Qua- 
len, Josias Sohne. 

Christoffer von Ahlefeld 
zum Nordsee. 

Heinrich von Ahlefeld 
zu Sattrupholm. 

Claus von der Wisch m 
Glasow. 



APPENDIX II 293 

VIII. East Fries/and Sums offered for t/ie slaying of Ippo 
Meyen, who slew Enno Abekena. 13 May 1443. 

[Printed in Ehrentraut, Fries. Archiv. n. p. 369.] 

Wy Syardus Curet wandaghes to ffyskwert, nv an duszer did to Pylsura, 
Enkenne openbaer an dusser scryfft vor den ghennen, den dussen opennen 
breff ghetoent wart, wo ick dar an ende ouer was, so ver als my to behoerde, 
bynnen Fiskwert vorscr. an der tiid als Enno Abekena saligher dechtnisse 
ghemene vrende to Dyken hues dar sulues, als hiir benamen nascreuen staen, 
de vastinghe makeden vp Yppo meyen to Pylsum umme de mysdaet, dar 
Yppo saligher dechtnisse an salighen Ennen hadde begaen, vnde loueden to 
sammede den ghennen, de Yppo vorscr. weder slaen kunden, dyt nascreuen 
guet vnde dar na van sammender hant schadeloes to holden, als oeck Ebbo 
to Pewesum ouer dat open graff sprack, als den Susteren to Dychusen kun- 
dich ys. Int erst louede dar to Tateke salighe Ennen huovrouwe en span 
vnde teyn grase landes bii lomken sloet. Item Ponptet to Hlerlten XX. grase 
landes. Item Gayko dar sulues XL. ar. gulden. Item Frerd vi. grase landes. 
Item Enno XL. ar. gulden. Item Mammo XX. ar. gulden. Item Vdo to 
Mydlum XL. ar. gulden. Item Poppo XX. ar gulden. Item Edo XII. ar 
gulden. Item Onko XX. ar gulden. Item Memmo to Vphusen XX. ar 
gulden. Item Yppo XX. ar gulden. Item Sybeko XX. ar gulden. Item 
Sebo XL. ar gulden. Item Hayo twe grase landes. Item Focko n. grase 
landes. Item Boel vnde Vlfart to Grimesum xxnil. arnss gulden. Item 
Enneko sebensna XL. grase landes. Item Gayko lyursna XL. rynscher 
gulden. Item Ebbo n. hundert lichter gulden. Item Vdo vnde Sybrant 
to husum xxv. ar. gulden. Item Nyttart hayen XL. ar gulden. Item Meno to 
Manslyat nil. hundert lichter gulden. Item Frederick habbena XL. ar. 
gulden. Item Hep folricksna hundert ar. gulden. Item Nonno reinkena 
hundert lichter gulden. Item Hero aptetzna hundert lichter gulden. Item 
Dyko XL. ar gulden. Dyt ys de rechte vastinghe, dar schach beide to Fisk- 
wert ende Dichusen. In orkunde der warheit so hebbe ick Syardus vorscr. 
mynen Ingheseghel vm de rechte warheit hanghen heten bii neden an 
dessen breff. It yar vnses heren dusent verhundert XLIII. vp Sunte Serua- 
cius dach des hillighen byscops. 

"We Syardus, formerly incumbent of Visquard, now at this time at 
Pilsum, publicly acknowledge in this document on behalf of those to whom 
this open letter was displayed that I was present at the said Visquard, and 
presided so far as it behoved me, on the occasion when (in the nunnery of) 
Dyckhusen in that place, the common kinsmen of Enno Abekena of 
blessed memory, whose names follow here, made the agreement against 
Yppo Meyen of Pilsum on account of the misdeeds which Yppo of 
blessed memory had committed against Enno of blessed memory, and 
together promised to those who could slay the said Yppo in return, this 
hereinafter-named property, and also jointly (undertook) to see that they 



294 APPENDIX II 

should not suffer thereby, as also Ebbo of Pewsum 1 declared over the open 
grave, as is known to the sisters of Dyckhusen...." 

[The amounts promised (besides the widow's 'ox-gang' of plough-land 
and pasture-land for ten cows) are as follows : 

549 Arens gulden, by 18 men 
40 Rhenish gulden, by i man 
700 'light' gulden, by 3 men 
70 strips of pasture-land (each sufficient to pasture one cow 2 ), 

by 6 men.] 

"This is the true agreement, which was made both at Visquard and at 
Dyckhusen. In proof whereof I Syardus aforesaid have for the sake of 
truth ordered my seal to be suspended at the foot of this document." 

IX. Holland Official adjudication in a slaying 

case, 1392. 

[From P. J. Blok, Leidscke Rechtsbronnen nit de Middel- 
eeuwen, 1884, p. 35.] 

Donderd. nae Paeschdagh anno 1392. 

Dit is tsegghen, dat die burchgrave van Leyden ende tgherecht van Leyden 
als overmanne gheseyt hebben mit Gherijt Lam, Willem Foytgen, Hughe 
Claes soen ende Jan die Bruyn, die dadincslude gheweest hebben van Jan 
Hellebrekers doet, die God ghenadich si, daerin besculdicht waren Wolbrant 
Keysers soen, Floris van Rijsoord, Heinric Tier ende Jan van Renay, daer 
dat segghen of is twisken Wolbrant voirsz. ende sijn hulperen ende horen 
maghen an die een side, ende Claes Hellebreker, Jans breeder, ende sinen 
maghen op die ander side, op een pene van 500 ponden dat segghen te 
houden, ende te voldoen half den heer ende half den segghers. Nochtan 
dat segghen voert te gaen. In den eersten so sel Wolbrant voirsz. doen Jans 
ziel te rusten ende ter ghenaden twie hondert zielmissen, cloesterwinninghe 
te doen twisken Maze ende Zijp, alse costumelic is, ende dair betoech of te 
brenghen toten lesten daghe der betalinghe; ende want costumelic plecht te 
wesen, dat men voetval ende overeed plecht te doen, so is hoer segghen, dat 
die an beyden siden off sellen wesen. 

Hierof sel costen die heel zoene 449 pont. hollns. paym., dertich grote, 
als ghenghe ende ghave sien, voir elc pont, welc ghelt verborcht heeft Jacop 
van Rijsoerd mid Floris sinen breeder voer een derdendeel, Jan van Leyden 
mid Dire van den Werve een derdendeel. Item dat leste derdendeel beloept 
149 pont. 13 sc. 4 penn. paym. voirscr. ; daerof heeft verborcht Jan Costijns 



1 All the places mentioned are in the Emden district. 

2 For this explanation of ' gras ' I am indebted to Geheimrath Dr Wachter, who 
also points out to me that the document has been more recently printed in Friedlaender's 
Ostfriesisch.es Urkundtnbuch, I. No. 548. 






APPENDIX II 295 

soen een vierendel, Nan van Lis een vierendel, Dire Wolbrants soen niit 
Wouter Keysets soen ende mid Jan Loyaert een vierendel ende dat leste 
vierendel Wouter Keysers soen allien. 

Hierof sel hebben ter erfsoen Claes Hellebreker 80 pt. Item ter voirsoene 
130 pt. ; daerof sel hebben sijn moeder 20 pt., sijn twie susteren elk 10 pt., 
sijn kint 20 pt, dat die doerne bi hem draecht, ende storve dat kint sonder 
blikende boort, so sout comen op Jan Hellebrekers recht erfnamen. Item 
sijn drie omen elk 10 pt. ; item sijn moeyen kinderen ende oems kinder 
50 pt. ; te delen elc effen veel. Item ter maechssoene 213 pt. paym. voirscr. 
Item tgherecht, die nu sien, 16 pt, daer si se wisen ; hierof sel wesen die 
eerste dach van der betalinghe tot sinte Louwerijsdaghe naest comende ende 
tot elken ses weken een derdendeel, te betalen opter stede huys : ende wes 
tgherecht hierof hebben sel, dat sellen si opboren van den eersten daghe. 

Voert so sellen dieghene, die in den doetslach besaect sien, des Beliues 
ende des Burchgraven moede hebben mid ghevoeghe jof mit recht ; desghe- 
lijcx so sel Claes Hellebreker mid sinen maghen oec den heer ende den 
Burchgrave stillen mid ghevoege jof mid recht ; ende vel hier anders iet in, 
dat houden die segghers tot hore verclaringhe. 

" This is the decision which the Burggraf of Leyden and the Court of 
Leyden as adjudicators have declared together with Gheryt Lam, Willem 
Foytgen, Hughe Claes' son and Jan die Bruyn, who have been arbitrators 
in the matter of the slaying of Jan Hellebreker (on whom may God have 
mercy), in which were implicated Wolbrant Keysets son, Floris van Rvsoord, 
Heinric Tier and Jan van Renay. The award is made between the said 
Wolbrant and his helpers and their kinsmen on the one side, and Claes 
Hellebreker, Jan's brother, and his kinsmen on the other, and is to be 
adhered to on a penalty of ,500, half this sum to be paid to the lord and 
half to the adjudicators, and the award to be enforced notwithstanding. 
Firstly the said Wolbrant shall cause two hundred masses for the dead to be 
said for the comfort and pardon of Jan's soul: he shall cause him to be 
entered as a brother in all abbeys 1 between the Meuse and the Zijp, as 
is usual, and is to bring proof thereof on the last day of the payment ; and 
since it is customary that persons should make a public plea for pardon 
or public reconciliation, it is their decision that both sides must be included 
in it 2 . 

Besides this the whole zoene shall cost ^Holl. 449; thirty groats, such as 
are current, to each pound, for one-third of which sum Jacob van Rijsoerd 
with Floris his brother has stood surety, and Jan van Leyden with Dire van 
den Werve, for one third. Item, the last third amounts to ^149 13 sailings 
4 pen. of the said money : for one quarter of this Jan Costijn's son has stood 



1 In order that his soul may benefit vicariously by the works of charity performed 
by the monks: cp. Verwijs en Verdam, Mud. Wb. s.v. cloosterwinning. 

2 The translation of the words off sellen wesen is somewhat hypothetical. 



296 APPENDIX II 

surety, for one quarter Nan van Lis ; Dire Wolbrant's son with Wouter 
Keyser's son and with Jan Loyaert for one quarter, and for the last quarter 
Wouter Keyser's son alone. 

Of this Claes Hellebreker shall have for heir's compensation 80. Item, 
136 (shall be) for voirsoene: of this his (Jan's) mother shall have 20, his 
two sisters each .10, his child, whom the girl will bring into the world, ,20, 
and if the child die at birth, it shall go to Jan Hellebreker's legal heirs. 
Item, his three uncles each ^10, item his aunts' and uncles' children ^50, to 
be shared in equal parts. Item, for kindred compensation, ^213 of the 
aforesaid money. Item, for the Court (its present members) ^16, to go as 
they shall decide. The first day of payment for this shall be on next St. 
Louwer's day, and one third every six weeks thereafter, to be paid at the 
Town Hall ; and the part the Court shall have of it they shall receive from 
the first instalment. 

Further, those who are prosecuted for the slaying shall secure the grace 
of the Bailli and the Burggraf by friendly arrangement, or else in legal 
course : similarly Claes Hellebreker and his kinsmen shall also satisfy the 
lord and the Burggraf by friendly arrangement or else in the legal course ; 
and if there should be any dispute about any part of the compensation, the 
arbitrators shall have that part for their declaration." 



INDEX 



achtendeele \ 6 1 

etfSas unfeh&a 208 

Adolph, Duke 107 

,/Ethelberht's laws 205 

^Ethelstan's laws 214 f., 229 

/Ethelred's laws 217, 221 rf. 

tftt 215 

cett(E hogher 272 

attcrrbot 72 f., 210 

aftersusterkynt 160 

agnation 268 ff. 

agnates 12, 50, 52, 59, 73, 126, 139, 

141 f., 171 
dlfa-bl6t 272 

Alfred, King 48, laws of 211 ff. , 217 
Alfred and Guthrum's treaty 114 
alienation of land, see pre-emption 
alimentation 7, 43 f., 67, 76, 140 f., 213, 

2 33 

Allgemeine Gesetze des westerlauwerschen 

Frieslands 149, 266, 268 
Alost 173 f. 
Als, island of 103 
Altenwalde 145 
alter leute 133 
Althing 25 
Amiens 190, 192 
Amrum, island of 102 f. 
Amsterdam 166 
ancestor worship 271 ff. 
anderlinc 175 
anderzweers 1 74 
Andreas Siinesjrfn 81 
Antwerp 1 76 
Appenzell 170 
arbitrators 89, 124, 185 
Archinfield 242 
Ardenbourg i 76 
arfsal 97 
aristocracy, merchant 202 ; Norwegian 

Arroe, island of 103 
artificial relationship 126 
arvcebot 7 1 

asseurement I92f., 196 
Augsburg 171 
Austria 171 

Bcelr 11, 28, 41 f. 



bails, see pledges 

bane I 28 

barne bloet 105 

Baugatal \ i ff., 50, 266 

baugr 1 2 fF. , 27 

baug\ak i2f., 53 

Be wer glide 22 3 f. 

Be wifrnannes beweddung 236 

Beaumanoir 8, 193 ff. 

Beauvais 193 f. 

Bede 238 

Belgium I73ff., 246 

Beowulf 236 f. 

Bergedorf 146 

Bjarnar Saga hitdaelakappa 15,11, 14 f. 

Black Death 259 

Blood-feuds, see Feuds 

Bluting 122-3 

Bordesholmer Amtsgebrauche 103 

borgermesters 166 

borh 111. 

bothe 1 06 f. 

boyne bothe 105 f. 

Borough Customs 220, 233 

Bracton 242 

brdftrungr 56, 61 

Bremen 145. 245 

Briel 8, 161 f., 182 

British kindred system 209 

brodertembte 126 

brodertemcde 128 

brother as nearest kinsman 81, 174 

Bruges 173, 175, 178 

Burgundy 164, 197 f. 

Butjadingen 249 

Butjadinger Kiiren 148 

Cambrai c 85 

capitularies 201 f. 

Caroline code 125, 146 

Cassel 176 

Cead walla 237 

Celle 1 68 

Central Germany 168 ff., 245 

ceorl 250 

Champagne 195 ff., 246 

Chancery, Ducal 133 f. 

Chansons de Geste 198 ff., 239 

Charles V 184 



298 



INDEX 



Childebert II 194, 207 
Christian I of Denmark 135 
Christian III of Denmark 82 f., 104 f. 
Christian IV of Denmark 99 
Christian V of Denmark 103 
civic authorities connected by kinship 166 
clan 2, 126, 131, 245, 274 
class distinctions 97 
clerics 194, 221 f- 
Clermont 193 
Clovis 194 

Cnut's laws 217, 222 ff., 234 
comitatus 237 
eomites 253, 276 

v . compurgation 6, 67, 71, 74 ff., 81, 99 f. , 
i2 3 f., i28f., 143, i5 4 f., 191, 199, 

211, 215, 221, 223, 229 f., 241, 264 

Concilium Thunresfeldense 215 

congildones 202 

conjurati 202 

Count of Holland 160, 163, 167 

cousin, in A.S. lit. 243 

cross-payments in wergild 57 f. 

cult-community 271 

cult of the dead 273 

custeet 1 66 

custinghe 166 

cyn 223 

Danish period in England 214, 234 
Danish features in A.S. law 227 
Danelaw 220, 233 
demi point mains 185 
derdelinc, derdelingen 17 \i. 
distraint for wergild debts 81, 162 
Ditmarschen 104, n^ff., 252, 267,270^ 
Ditmarschers in Fehmarn 137 
Dordrecht 166, 176 
Douai loxaf. 

Drenthe 1598"., 164 ff., 249 
Droplaugarsona Saga 17, 22 
Dunwich 233, 241 

Eadgar's laws 221 

Eadmund's laws 218 ff., 225 f. 

Eadnoft 235 

Eadric, see Hlothhere 

Eadweard's laws 214 

Eadweard and Guthrum's law 223 

earls, Norwegian 47 

East Friesland 147 ff., 155 

Ecgbert, Archbishop 232 

Edzard, Count 155 

terste lit 160 

cffaitement 197 

Egilssaga 35, 48 f. 

Eiderstedtische Krone der rechten War- 

heit 103 
Eiderstedtische Landrecht 103 

Ely 233 



Emden 157 

emigration 260 

Emo, Abbot 158 

England 246, 250 

enhizkes bothe 106 

erfzoen 1 6 1 , 1 64 

Erik Menved 82 

Erik of Pomerania 137 

eskevins 1 86, 1 90 

Exeter 214 

Eyrbyggia Saga 15, 18, 20 

eyrir, pi. aurar, 11 

Fachten 155 

Falck 122 

family ties, decay of 240 
fangen i 50 
far a 272 

father's kindred 69, 72, 79, 106, 267 
fee hi 106 
fedetkom 106 
fedriethom 106 

Fehmarn 104, 

festival, kinsmen's 272 
.feud 109, in, 145, 164, 172, 178, 193 ff., 
213, 219, 222, 231, 254, 258, 264 

feudalism 172, 201, 250 
feyring 115 

'fist-law' 105, 108, 136 

Fivelgo 153 

Flanders 173 ff., 178, 184 

Flensborg 109^, 114 

Floamanna Saga 20 
fif&urbatr 39 f. 

Fohr, island of 102 f. 
forma b<.rnig 152 

Forty- Eight, College of the 125, 129 

Fostbrse'Sra Saga 21 

foster-brotherhood 24^, 61 
fourjurement i/gff., 191, 194 
frana 1 5 1 

France 184^, 235, 249 
frcendbatr 52, 57 
frcendi 25 

Franks 159, 250, 255, 261, 268 
fratrueles 159 

Friedrich, Duke 104 

Friesland 1470"., 245 ff. 

Friesland, North 102 ff., 266 

Frisian islands (North) 102 

Frisians 159, 261 
friund 151, 243 

Frostuthing's law 44, 49 ff. 
friindeschaden 1 08 

'full oath' i28f. 

funeral of kinsmen 133 
funfharde 104 
fyhtwite 224, 226 f. 



Gegildan 207 f., 21 iff., 237 






INDEX 



299 



Geldern 167 
gentalogia 272 
Gerhard the Great 129 
Geschlecht (slachte) 126 
gesfd 208 
geslecht 182 
Ghent i73ff. 

Ghis 1'Escrinewerckere 8, 185 
' gifts ' 62; see gjorsum 
gilds 201, 257 
Gfsla Saga 15 
gjorsum 80, 2 26 f. 
Glarus 171 
Godefroi, Bishop 185 
, go^ar 32, 31, 33, 37, 46 
Coding 146 
Gongu-Hrolf 263 
Grdgds n, 37 ff. 
Grettissaga 19, 21 ff. 
Groden 145 
Groningen 156 
guarantors, see pledges 
guardianship 4, 155, 203 f. 
Guftmundar Saga dyra 31 
Gulathing's law 44, 56 ff. 
Gunnars Saga ThrSrandabana 17 
Guthrum 214 

Haarlem 167 

Habsburg, Count Rudolf of 171 

Hadeln 145, 245, 249 

Hadersleben 119 ff. 

Hainault 176, 178 f. 

kalsfang, see healsfang 

Hamburg in, 114, 118, 143 ff., 245 f. 

handclasp 220 

handsel 220 

Hanover i68f. 

Harald Hairfair 252, 263 

HariSar Saga 15 

hardesgerichte 123 

hait Id, holdr 61, 63 

Hdvar'Sar Saga 19, 22 

healsfang 224, 226, 228 f., 267 

hcemrad 166 

heirs 38 ff., 65, 83, 105, in, 155, 161, 

168, 171, 229, 262, 266 
Helsingeland 68, 154 
Helsingor 225 
Hemricourt 181 
Henin-Lietard 190 
hersar 47 
Hesse 168 f. 
Historia Eliensis 239 
Hlothhere and Eadric, laws of 206 f. 
hoftf&baugr 56, 61 
Holland i59ff., 245 f. 
Holstein 102 f., 125 ff., 245 
hoveskhed 226 
Hrafns Saga 30 



hreppr 43, 45 

Hrollaug, Earl 263 

hundred, a district 70 

' hundred' 1 of silver 13 ; see Appendix I 

Hunsingoer Ktiren 151, 153, 266 

Iceland 246, 251, 254 ff. 
Icelandic Sagas 218, 237 
ieldstopa \ 54 

illegitimate child, wergild of 208 
illegitimate sons 12, 163 
^interfamily feuds 14 ff., 29 ff., 70, 238 
Ine 237 f.; laws of 207 ff., 217 
infants 82, 153, 194 
Innsbruck 172 
Itzelings 171 

ian Matthijssen 8 
can d'Outremeuse 181 
ohann, Duke of Schles wig- Hoi stein 135 
justice, administration of 249, 251, 253 
Jutish law 79 ff., 103 
Jutland 248 

Karr Harde 124 

Kent 205 ff., 232 

Kentians 237 

Kentish ordinances 215 

Kiel 141, 246 

Kindred, causes of decline of 257 ff. ; 
definition of 2 ; democratic tendency 
of 256; functions of in the social 
order 246 ff., 275 ; liability of abro- 
gated 65, 76, 81 f., 87 f., 145, 164, 176 ; 
no litigation within 148, 235 ; not a 
corporation 3 ; secondary liability of 
107 f., 206 ; limits of 63, 273 f. ; 
structure of 106-7, 2 43> voluntary 
contributions of 87 f., 165 

Kinlessness 213, 2i7f., 221 f. 

Kinship, denial of 181 ; mode of 
reckoning 274 

Kinsmen, exclusion of on Councils 
166, 176; new liabilities of 2i4f. ; 
secondary liability of 165, 211 

Kj+n 217 

Kj+nseedt 123 

Kjjns nafn 99 

Kluft, Klufft 106, I26f., 128, 132, 134 

Kluftbucher \ 32 ff. 

Kluftsvetter \^i. 

Knud VI of Denmark 80, 101 (in this 
latter passage read ' VI " for ' the 
Great') 

Kolding Recess 83, 104 

Krone der rechten Warheil 103, 105 f. 

Kyn 215 

Kyns nafnd 99 

Land, see pre-emption 



300 



INDEX 



Landholding, by Kliifte 134; by teeler 

*75 

Landnmabok u, 358"., 47 
Landrecht, East Frisian 155 
Langobardians 269, 272 
laws, evidence of 8 
Laxdaela Saga 15, 18 
Lecchdoms 238 

Leges Henrici 209, 229 flF., 242 
Lets Willelme 228 f. 
lead, leodgeld 205 
Letters of attorney 85, 119 
Lex Salica, see Salic Law 
Lille 176, 180, 184 f., 189 f., 192, 266 
Ljosvetninga Saga 16, 19, 40 
Liege 178, 181 

li^nage 181, 190, 195 ff., 203 
Livre Roisin 184, 192 
London 216, 233, 241 
Loon 167 

lord, responsibility of 213 f., 218 
lordless man 214 
loyalty, to lord 49, 200, 213, 231, 237; 

to kin 200 
Liibeck 141 ff., 182 f., 246 

Magbot 2iof., 221 

magburh 209, 215 

ma>g$ 2146., 2i6f., 224, 235, 243 

mizggieldan 209 f. 

m&glagu 222 

mcegleas, see kinlessness 

maechtaele 165 

maechzoen, maechzoenc 161, 164, 167 

Magnus, King, Eriksson 76 

Magnus, King, the Law-Mender 65, 67 

maintenance of paupers, see alimentation 

Malines 1 75 

manbot 210, 224, 226 

manngjold 14, 19, 20, 22, 27 

manslaughter, death penalty for, 83, 

109 f., ii2f., 130, 156, 195, 242; by 

misadventure or in self-defence, 83, 

107, 130, 156 
mark 12 ; of gold 63 
Maldon, Battle of 239 
marriage, consent of kin for 5, 70, 167, 

236; persons connected by 12, 21, 61, 

98, 131 

medderthotn 106 
ineggildare 210 
meitel, meittle 149, 153 
menteel 149, 151 
merchant families 202 
Mercia 226, 228 
Metternich 170 
migration 261 f., 27 if. 
minde 226 
moetzoen 161 
woeyenkint 1 75 



moeyensoen 1 60 

mondzoene 1 73 f. 

mondzoendere 1 74 

Mosaic law 82 f. 

mother 69, 131 

mother's kindred 69, 72, 79, 106, 267 

mundbryce 226 

Miinster i68f. 

Namur 178, 254 

nefgildi 51, 52 

neighbours 232 

neinede 128 

Neocorus 1 26, 1 29 

Neumiinster Kirchspielsgebrduche 103, 

i3<>f. 

Neustria 193, 246 
nf&gjold 12, 14 
niece 1 54 
nithing 180 

Njalssaga 17, 20, 22 f., 25 ff. 
nobles 135, 153, 248, 252 f. 
Norfthymbra Preosta lagu 223 
Norftleoda lagu 223 
Nordstrand 104 f., 122; Landrecht of 

i>3 

Norman Conquest X4Ofi 246 
Normandy 202 ff., 263 
Nprre Rangstrup Herred 115 f. 
North Friesland, see Friesland 
Northern England 232, 250 
Norway 246, 252 
Nuremberg 1 70 

Oath, see reconciliation 

oath-helpers, see compurgation 

Oda, Archbishop of Canterbury 220 

odal 43, 67, 233 

odalborinn 61 

Odin 272 f. 

qfledene 147 

Ohthere 48 1 

Oldampster Kuren 151 

aide torneye 107 

Oldenburg, Counts of 147 

Oldeslohe 139 

oom skint 175 

orfejde 91, 241 ; see also reconciliation 

orkenen 155 

orphans 154 f., 203, 229 

orfuf, ortugh 12, 13, 57, etc. 

Oudenarde 173, 266 

outlawry 18, 49 f., 212, 222 

Pace-suchen 1 72 

paiseurs 184, 190, 199 

paix & partie 178 

pardon, plea for 185, s<e voetval 

parcntcla 159, 194, 215, 239 

Pas-de-Calais 190 



INDEX 



301 



paupers, see alimentation 

perjury 119 

Petreus 104 f. 

pews, in church, of the A'luft 134 

1'hilip Augustus 195 

Picardy 246 

place-names 244 

plaintiff 38, 161, I73ff. 

pledge-breaker 1 1 3 

pledges 34, 162, 193, 219 f., 224, 232 

population, density of 260 

pre-emption 5, 43, 67, 76, 100, 233 f. 

pretium sanguinis 232 

priests 153, 157 

private treaties 83, 144 

Protestant Church 83, 87, in, 129 f. , 

see Reformation 
Public Prosecutor 144 

Ragnarok 240 

Ramsey Abbey 233 

reconciliation, acceptance of inf., con- 
sent of slachte to 127; deeds of 65, 
76 ff., 89 ff., 113, ii7f., i77ff., i86ff., 
196 ff. ; negotiations for 86 f., 193 f-, 
2i9f., 224?.; oaths of 208, 239, 241; 
see also asseurftftent, orfejde, private 
treaties. Cp. Appendix II 

rechtzweere 1 74 

rechtzweers 175 

Reformation 96, 109 

Regents 255 

Reiticke Vbs, see Reynard 

Reinhart Fuchs, see Reynard 

renunciation of kindred 7 ; see fourjure- 
ment 

repudiation of kinsman 7 

rtttr 4 if. 

Reykdaela Saga 21 ff., 40 

Reynard the Fox i82ff. 

Ribe 92, 272 

Ribuarian law 167, 218 

Roman Church in 

Roman law 229, 257 

Roman de Renart, see Reynard 

Russia 264 

Quaranlaine 189, 194 

Sachsenspiegel 103, 136, I38ff. 

Saint Louis 189 

Saint Omer 8, 185 f., 190 

sakarbiEtr \ i 

sakaukar 12, 51, 55, 60 

saker 56, 62 

Salic law 174, 201, 229, 266 

samfroender ed 99 f. 

samfreunde 124 

sanctuary 213 

Sandtmend 84 



Sandmanner 1 20 

Saracens 250 

Saxons 159, 248, 268 

Scheptn 176 

Schildwolde 158 

schlecht 1 35 

Schleswig 102 ff., 245 

Schleswig-Holstein 102 ff., 182 

Schwyz 171 

sedan 220 

seignorial rights 248, 253 

'self-doom' 16, 32, 237 

serf 75 f. 

Siebenhardenbeliebung 103 f. 

Silesia 170 

sister 131, 153, 238 

Sjaelland law 79 ff. 

SkSne law 74, 79 ff. 

sk6garkaup 6 1 

slachte 1250% 130; alliances of 130, 

135 

slachtes breve 157 

sliegt 86 

slave 208 f. 

slayer, flight of 50, 82 f. , 206, 212; 

insolvency of 154; outlawry of 18, 49, 

61, 212, 222 ; primary liability of 127; 

representative of 185; sole liability of 

i8ff., 50, 65, 82, 155, 211 
Sodbury 235 
Sodermanna law 70 
sona 77 

sonarbxtr 22, 40 
sone 1 7 1 
Sonderburg 103 
Spain 264 

spear side 143 ; see agnates 
spindle side 143 
Sta$>arh6lsb6k 41 
Stadtbucher 1 70 
Stadtland 249 
Staveren 1 59 
Sturlu Saga 31 
Sturlunga Saga n, 19 ff., 40 
succession 39 
Siihngerichte 234 
Sunbury 236 

sureties 185, 199; see also pledges 
susterbern 152 
Svarfdsela Saga 21 
Svinfellinga Saga 30 
Switzerland 171 
svjertmac 139 
swira 153 
Sylt, island of 102 f., in, 114, n8f. 

Tale 108 
thale 105 
thane 223, 239 
theft 129, 214, 218 



302 



INDEX 



Thing 18, 21, 75, 81, 84, 86, 109, 115 

thingman 11, 22, 33 f., 37, 46 

ThorskfirtSinga Saga 14 

thrall 53 

thrall-bom kinsman 12, 51 f., 62 

thredda halua knileg 152 

thredda knileg 152 

Thunor 238 

Tournai 1776. 

towns, solidarity of kindreds in 346, 249, 

2 55 

Treves 170 
truce 178 ff., 190, 194 
truce-buying 53, 62 
trygde-cd 92, 225 
trygge 84 
tryggva-kaup 62 
twelf-hynde 228 
twy-hynde 228 

Upland law 70 
upndm 56 

Urfehde, see reconciliation 
Utrecht 164, 166, 176 

Valdemar II, of Denmark 82, 212 
Valenciennes 180, 190 
Vallaljots Saga 19 
Vapn6rt?inga Saga 17 
Vatsdaela Saga 16, 21, 36 
Verden 145 
Vestergotland law 72 f. 
Vestmanna law 69 f. 
Vfga-Glums Saga 16, 20, 23 
Viking age 253 
Viking raids 250 
vlgsakarbatr^ vlgsbatr 4 1 f. 
Vigslfoi 37 ff. 
village community 260 
Vetter 133 

Vetterschaft 133, 136 ff., 141, 269 
vierendeel 161 ff., 167 
Voluspd 240 



162, 167; see pardon 
voorzoen 1 64 
vrunde breff 157 
vyfde lit 160 

Wadmal 31 ; see Appendix I 
waller wente 223 
Waltharius 200 
Water land 162 
Wends 103 
werelade 229 
Werfer'S, Bishop 235 
wergild, abrogated 96, 105 ; bequeathed 

to churches 236 ; as fine 207 ; limited 

to heirs 38, 65, 76, 96 ; to near family 

238 ; paid till 1751, 168 
wergild surety, see pledges 
Wessex 216, 228, 230, 251 
West Friesland, see Friesland 
Westerwold 249 
West Saxons 237 
Wetzlar 169 
Wicht, Landrecht 155 
widow 69, rio, 115, 117, 131, 154, 

170 

Wihtraed's laws 207 
Willem i82f. 
wills 235 

Wilstermarsch 140 
wine-magas 239 
Witte-Wierum 158 
women, participation in wergild 12, 

23, 62, 66, 97 f., 131, 142, 152, 154, 

238 ; excluded 194 
Worms 169^ 
wrield 154 

Wulfstan, Archbishop of York 239 f. 
Wursten 249 

Zeeland i6off., 166 
zoene i86f. 

\eowwealh 208 f. 



CAMBRIDGE: PRINTED BY JOHN CLAY, M.A. AT THE UNIVERSITY PRESS. 



CAMBRIDGE ARCHAEOLOGICAL AND 
ETHNOLOGICAL SERIES 

The Origin of the English Nation. By H. MUNRO 
CHADWICK, Professor of Anglo-Saxon in the University of Cambridge. 
With 4 maps. Demy 8vo. 75 6d net. 

"Mr Chadwick's comprehensive treatment of Anglo-Saxon antiquities 
which he has contributed to the Cambridge ' Archaeological and Ethnological 
Series ' exhibits the power of close reasoning which marked his earlier work 
in a wider setting and an easier and more flowing style. Though modestly 
described by the author as a succinct survey of what is known on its subject, 
no book that has appeared since Maitland's ' Domesday-book and Beyond ' 
deals with early English problems in so bold and original a way The treat- 
ment is always scholarly, and the student of English origins will find it full of 
suggest ion . ' ' Manchester Guardian 

The Heroic Age. By H. MUNRO CHADWICK, M.A. With 

3 maps. Demy 8vo. 125 net. 

" Mr Chadwick, whose acquaintance with the Teutonic Heroic Age and 
its poetry is extensive and thorough, compares them with the Greek Heroic 
Age and its poetry He writes fully and minutely about Greek and Teutonic 
poems, finding ' a number of somewhat striking characteristics common to the 
two groups of poems,' and concluding that ' the resemblances in the poems 
are due primarily to resemblances in the ages to which they relate and to 
which they ultimately owe their origin. '...Mr Chadwick's book is probably the 
most valuable study in Comparative Literature that has been produced in 
England." Andrew Lang in the Morning Post 

The Thunderweapon in Religion and Folklore. A study 

in comparative archaeology. By CHR. BLINKENBERG, Ph.D. With 36 
illustrations and maps. Demy 8vo. 55 net. 

Prehistoric Thessaly : being some account of recent excava- 
tions and explorations in North-Eastern Greece from Lake Kopais to the 
Borders of Macedonia. By A. J. B. WAGE, M.A. and M. S. THOMPSON, 
B.A. With a map, 6 coloured plates and 151 figures. Demy 410. 
1 8s net. 

Cyzicus : being some account of the history and antiquities of 
that city, and of the district adjacent to it, with the towns of Apollonia ad 
Rhyndacum, Miletupolis, Hadriamttherae, Priapus, Zeleia, etc. By F. W. 
HASLUCK, Fellow of King's College, Cambridge. With 26 illustrations 
and 3 maps. Demy 8vo. IDS net. 

Place -Names of South-West Yorkshire : that is, of so 

much of the West Riding as lies south of the Aire from Keighley onwards. 
By the Rev. ARMITAGE GOODALL, M.A. Demy 8vo. 75 6d net. 

Place-Names of Nottinghamshire. By Dr H. MUTSCH- 

MANN. In preparation. 

Continued overleaf 



CAMBRIDGE ARCHAEOLOGICAL AND 
ETHNOLOGICAL SERIES, continued 

Ethnology of A-Kamba and other East African tribes. 

By C. W. HOBLEY, C.M.G., A. M. Inst C. E. With 54 illustrations and 
a map. Demy 8vo. 75 6d net. 

The Tribes of Northern and Central Kordofan. By 

H. A. MAcMiCHAEL, Sudan Civil Service, late Scholar of Magdalene 
College, Cambridge. With 19 plates. Demy 8vo. ics 6d net. 

Brands used by the Chief Camel-Owning Tribes of 

Kordofan. A Supplement to The Tribes of Northern and Central Kor- 
dofdn. By H. A. MACMICHAEL. Demy 8vo. 6s net. 

The Veddas. By C. G. SELIGMANN, M.D., and BRENDA Z. 
SELIGMANN. With a chapter by C. S. MYERS, M.D., D.Sc., and an 
appendix by A. MENDIS GUNASEKARA, Mudaliar. With 72 plates, 
15 text figures, and map. Demy 8vo. 155 net. 

Kinship Organisations and Group Marriage in Aus- 
tralia. By NORTHCOTE W. THOMAS, M.A. With 3 maps. Demy 8vo. 
6s net. 



Selected from the General Catalogue 
Studies on Anglo-Saxon Institutions. By H. MUNRO 

CHADWICK, M.A., Professor of Anglo-Saxon in the University of 
Cambridge. Crown 8vo. 8s net. 

The Cult of Othin. An Essay in the Ancient Religion of the 
North. By H. M. CHADWICK, M.A. Crown 8vo. 25 6d. 

Early "Wars of Wessex. Being studies from England's 
School of Arms in the West. By ALBANY F. MAJOR. Edited by the 
late CHAS. W. WHISTLER, M.R.C.S. With 21 maps, plans and dia- 
grams. Demy 8vo. ros 6d net. 

National Life and Character in the Mirror of Early 
English Literature. By EDMUND DALE, M.A., D.Lit. Royal 8vo. 
8s net. /T\ 



Cambridge University Press 
Fetter Lane, London. C. F. Clay, Manager 



3 



' 



PLEASE DO NOT REMOVE 
CARDS OR SLIPS FROM THIS POCKET 

UNIVERSITY OF TORONTO LIBRARY 



Phillpotts, Bertha Jurtees 
Kindred and clan